Rem Civ Pro

REMEDIAL LAW REVIEW 2007
INTRODUCTION TO REMEDIAL LAW REVIEW

(1
st
meeting)
Jurisdiction is the sun around which the remedial system revolves. Master the issue in
jurisdiction, you have already complied 50% of remedial law.
In ns!ering t"e e#ms$ %ou "&e to determine'
1. What rule applies?
2. f there !e no applica!le rule, determine the jurisprudence to which it is related"
#. f the two a!ovementioned are not applica!le, solve the pro!lem under the principle
of jurisdiction
(sis o) Jurisdiction'
1. $he %onstitution, particularly section 5 of &rticle '"
2. () 12* as amended !y +& ,'*1"
#. +& -#'*
.. +& ,'#*/ 0andi1an!ayan/ constitutionally mandated court
W"t is Jurisdiction*
t is the authority to hear and decide a case
Distinguis"ed )rom E#ercise o) Jurisdiction
t is the effect of that authority. $hese are decisions, jud1ments, orders and resolutions.
Jurisdiction is con)erred +% ,!- It is t"e ,! t"t gi&es ut"orit%
.inds o) Jurisdiction'
1. 2ver the su!ject matter
2. 2ver the person or property
#. 2ver the res
.. 2ver the issue
n criminal cases, there is what you called territorial jurisdiction. 3enue here is
4urisdictional. n civil cases, venue is different from jurisdiction
5ot capa!le or pecuniary estimation, jurisdiction is with the +$%
4urisdiction over the su!ject matter6,'*1 7actions involvin1 title to or possession of
real property8. f the claim is more that ).00,000.00 in Metro Manila" or more than
)#00,000.00 outside Metro Manila
Jurisdiction o&er /erson0 /rties'
1. )laintiff"
2. 9efendant.
E#ce/tion' 0pecial )roceedin1s, one may oppose !ut he does not !ecome a
defendant
E#ce/tion to t"e E#ce/tion' n cases of :a!eas %orpus proceedin1s
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.
1
1o! does t"e court c2uire 3urisdiction o&er t"e'
1- 4,inti))*
;pon filin1 of the complaint. (ut jurisprudence dictates the mere filin1 of the
complaint is not sufficient, payment of the correct doc<et fees is re=uired 7%hec<
&lday vs >?; nsurance8.
5- De)endnt*
a. 3alid service of summons"
!. 3oluntary appearance. When the defendant voluntary su!mitted himself to the
jurisdiction of the court.
+ule 1. provides for the 0ummons to !e served to the defendant. $he defendant may!e
a prisoner, incompetent, insane or a corporation. 7%hec< the Millenium case8
In Crimin, cses$ 3urisdiction o&er t"e ccused is c2uired t"roug"'
1. @awful arrest" or
2. 3oluntary 0urrender
In cses o) t"ird0 )ourt"0 )i)t" /rt% de)endnt$ court c2uires 3urisdiction o&er
t"em t"roug"'
1. 3alid service of 0ummons"
2. 3oluntary &ppearance
n cases of an Inter&enor, court ac=uires jurisdiction over them u/on //ro&, or
grnting o) t"e motion to inter&ene.
Jurisdiction o&er t"e res is used only in certain occasions such as when the
jurisdiction over the person of the defendant is not ac=uired.
+es means facts of the case or status of a person.
E#m/,e'
1. &nnulment of Marria1e/ case may proceed.
ABtraterritorial service of summons under 0ection 1., 15 and 1' of +ule 1..
2. &ctions involvin1 property, may proceed provided court ac=uire jurisdiction over the
real or personal property
a. &n action for a sum of money. $he defendant cannot !e summoned nor
voluntarily appeared. &pply +ule 5,/ attachment or property to ac=uire
jurisdiction over the res. $he plaintiff can only eBecute the res. )a1 <ulan1,
thatCs it !ecause he did not ac=uire jurisdiction over the person of the
defendant.
!. f jurisdiction over the person of the defendant is already ac=uired, res no
lon1er necessary
Jurisdiction o&er t"e issue
&c=uired throu1h the alle1ations in the pleadin1
E#m/,e'
1. ;nlawful detainerD >orci!le entry. $he issue here is possession de facto and not
ownership or when the issue of ownership is raised in the pleadin1s, ownership must
!e solved first to resolve possession.
2. &ction for sum of money/ no demand letter/ defendant may dismiss the case
Jurisdiction o&er t"e su+3ect mtter'
%onferred !y law/ () 12*
2
E#ercise o) Jurisdiction
1. 2ri1inal/ for the first time to ta<e co1niEance of the case
a. ABclusive/ lies particularly with this court and no other court
!. %oncurrent/ authority is share !y several courts. A1. %ertiorari, prohi!ition
and mandamus
2. &ppellate
a. ABclusive" and
!. %oncurrent
4rinci/,e o) Jurisdiction'
1. 4udicial :ierarchy"
2. $he 0upreme %ourt is not a trier of facts"
#. 0upreme %ourt may ta<e co1niEance for the first time of transcendental importance.
ABampleF +ule .5 appeal !y certiorari/ must !e !rou1ht on pure =uestion of law !ut
in the case of >rancisco vs :ouse of +epresentative, that was not the case
7mpeachment case of 9avide8
De,egted Jurisdiction
4urisdiction of an inferior court ta<in1 co1niEance of cadastral and land re1istration
cases where the value of the property is not more than )100,000.00 and there is no
opposition thereto.
4ossi+,e (AR 6UE7TION' 7n ng //e, nito*
?eneral rule is that decisions made !y the inferior courts must !e appealed to the +$%.
ABception to this rule is the 9ele1ated jurisdiction, appeal in these cases is in the %&.
7/eci, Jurisdiction
ABercise !y inferior court in ta<in1 co1niEance for petition for !ail or ha!eas corpus in
the a!sence of +$% jud1es, 52$ in the a!sence of +$% courts.
Limited Jurisdiction
A1. 0ettlement of estate. $hrou1h a pro!ate court only. )ro!ate is concern only with the
eBtrinsic validity of a will.
Residu, Jurisdiction
4urisdiction of a court in spite losin1 its jurisdiction !ecause of the perfection of an
appeal still retains it for purposes of preservin1 the ri1hts of the parties.
7ection 8 Ru,e 91: 4er)ection o) n //e,: W"en /er)ected*
5otice of appeal
+ecord on appeal/ upon approval
;pon perfection of appeal, the court loses jurisdiction over the su!ject matter, and may
file a motion for eBecution. 7n )i,e* 0a trial court, still eBercises residual jurisdiction.
Regu,r courts'
1. 0upreme %ourt
2. %ourt of &ppeals
#. +e1ional $rial courts
.. nferior courts
5. 0andi1an!ayan
3
6usi Court'
1. %ivil 0ervice %ommission
2. %ommission on Alection
#. %ommission on &udit
6usi Judici, Agencies
&ll other a1encies that eBercises judicial or =uasi judicial function. +ule .# provides that
the %ourt of $aB &ppeals and other =uasi judicial !odies, !ut that is already amended.
%$& is already elevated to the level of the %&. +emove that already from +ule .#.
9elete the %$& there.
Just remem+er t"is )i&e (;)'
1. %ourt of &ppeals
2. 0andi1an!ayan
#. %ommission on Alection
.. %ommission on &udit
5. %ourt of $aB &ppeals
A,, ot"er 2usi 3udici, +odies$ //e, to t"e CA$ e#ce/t t"is )i&e
7ecurities nd Regu,tion Code$ /rgr/" ;-5. ori1inally co1niEa!le !y the 0+%
transferred now to the +$% !ut pursuant to 0% %ircular, inte1rated to the %ommercial
%ourts or +$%.
N(' No more s/eci, crimin, courts$ t"e on,% s/eci, courts re commerci, nd
)mi,% courts-
7"ri Courts: Mus,im
1. 0haria &ppellate %ourt6%&
2. 0haria 9istrict %ourt///+$%
#. 0haria %ountry %ourts///nferior %ourts
C"ec< RA =>81
4
No&em+er 8$ 5??>
6' What is the distin1uishin1 feature, doctrinal wise, in the cases of 9uero vs %& as
distin1uish in the doctrine laid down in +oBas vs %&? &re they conflictin1?
A' (oth of them are a!out issues of jurisdiction !ut in one case, the 0upreme %ourt
upheld the decision of the lower court, in another one it denied. +emem!er that the
leadin1 case in this re1ard is the famous case of $ijam vs 0u!un1hanoy. We are !ein1
tau1ht here a!out the proper application of estoppel. $he two cases are not
contradictin1, in the 9uero case, the participation is that there is no jurisdiction !ut in the
+oBas case the participation is to as< a favor and when he failed to o!tain the same, he
raised the fact of jurisdiction, here there is estoppel.
6' What are the remedies of the defendant upon jud1ment?
A' &ppeal in +ule .0, .1, .2 and .5.
What are the 1rounds for new trialD motion for reconsideration?
.no! t"e time /ost o) t"e remed%@
1. When a complaint is filed, what is the first remedy of the defendants?
a. Motion to dismiss under +ule 1'
!. 9ismissal of &ction
i. 9ismissal !y notice 7section 18
ii. 9ismissal !y motion 7section 28
c. 0ummary 4ud1ment
i. &s to defendant/ counterclaim
ii. &s to plaintiff/ as< for jud1ment on the pleadin1s
d. ;pon restin1 of the prosecution, the plaintiff may as< for demurrer to evidence
under +ule #0
2. >rom the 4ud1ment
a. 5ew trial
!. Motion for reconsideration
c. &s< for relief from jud1ment
d. &ppeal under +ule .0, .1, .2 and .5.
#. f you lose in the appeal, your final remedy is annulment of jud1ment
Gnowin1 the si1n post of remedy, the first =uestion you are 1oin1 to answer is AIn !"t
stge o) t"e /roceeding is t"is /ro+,em*B
f the sta1e of the proceedin1 is after presentation of evidence, you already <now what
is your remedy. &fter presentation of evidence of the plaintiff, defendant can file
demurrer to evidence. (ut even !efore answer is filed, your remedy is motion to dismiss
for any 1round enumerated in section 1 +ule 1'
n readin1 the cases, youCll 1et to <now what sta1e you are now so youCll not 1et lost in
the analysis. (efore you 1o to the decision of the 0upreme %ourt, 1o first at the court at
=uo, what happened there.
N(' T"e +sis )or dec,rtion o) de)u,t is on,% one$ t"t is )i,ure to )i,e n
ns!er$ i) %our +oo< sti,, sttes As in de)u,tB t"t is no ,oner correct$ !, n ung
As in de)u,tB- T"ere is on,% no! De)u,t-
Cener, Ru,e is that jurisdiction may !e raised at any time, even first time on appeal.
4urisdiction over the su!ject matter is conferred !y law. $he law that conferred the
4urisdiction of the 0upreme %ourt is the %onstitution. as< you to memoriEe section 5 of
&rticle - of the 1*-, %onstitution.
5
Jurisdiction o) t"e 7u/reme Court'
$he law that confers jurisdiction upon the 0% is the %onstitution under 0ec. 5, &rt. 3.
H0ec. 5. $he 0upreme %ourt shall have the ff. powersF
(1) ABercise ori1inal jurisdiction over cases affectin1 am!assadors, other pu!lic
ministers and consuls, and over petitions for certiorari, prohi!ition,
mandamus, quo warranto, and habeas corpus.
(2) +eview, revise, reverse, modify, or affirm on appeal or certiorari, as the law or
the +ules of %ourt may provide, final jud1ments and orders of lower courts inF
(a) &ll cases in which the constitutionality or validity of any treaty,
international or eBecutive a1reement, law, presidential decree,
proclamation, order, instruction, ordinance, or re1ulation is in =uestion.
(b) &ll cases involvin1 the le1ality of any taB, impost, assessment, or toll,
or any penalty imposed in relation thereto.
(c) &ll cases in which the jurisdiction of any lower court is in issue.
(d) &ll criminal cases in which the penalty imposed is reclusion perpetua
7or hi1her8. 7Note' the Hor hi1herI clause no lon1er applies !ecause there
is no more death penalty.8
7e8 &ll cases in which only an error or =uestion of law is involvedJ.I
Note' $he jurisdiction of the 0% can either !e eBclusive ori1inal or appellate.
6' 2ver what actions does the 0% have ori1inal eBclusive jurisdiction?
A' $he 0% has eBclusive ori1inal jurisdiction over the ffF
)etitions for certiorari, prohi!ition, and mandamus a1ainstF
1. %ommission on &udit 7%2&8
2. %ommission on Alections 7%2MA@A%8
#. %ourt of &ppeals 7%&8
.. 0andi1an!ayan
5. %ourt of $aB &ppeals 7%$&8
Concurrent 3urisdiction*
Notes' & petition for certiorari, prohi!ition, and mandamus is not always under the
ori1inal eBclusive jurisdiction of the 0% eBcept when the respondent thereto is any of
the a!ove/mentioned 5 !odies !ecause these !odies are neBt to the 0% in ran<. (;$
when you spea< of petitions for certiorari, prohi!ition, and mandamus a1ainst the +$%,
it is not eBclusive, rather it is concurrent with the %&.
& petition for ha!eas corpus and =uo warranto is not eBclusive in the 0% !ut is
concurrent with the +$% and %&.
4ust remem!er these 5 !odies" &ll the rest are outside the ori1inal eBclusive jurisdiction
of the 0% in petitions for certiorari, prohi!ition, and mandamus.
5evermind petitions for =uo warranto and ha!eas corpus !ecause you never file a
petition for =uo warranto a1ainst these !odies !ecause what is =uo warranto?
;surpation of powerJwhy would you file it a1ainst the %&?...and the same thin1 with
ha!eas corpusJso, it cannot !e eBclusive, !ut always concurrent.
4ust remem!er %&, %$&, %2&, %2MA@A% and 0andi1an!ayan, all the rest is outside
the ori1inal and eBclusive jurisdiction of the 0upreme %ourt if it is petition for certiorari,
prohi!ition and mandamus. (ut not =uo warranto and ha!eas corpus !ecause you do
not file this petition with these !odies.
6
6' What is =uo warranto?
A' t is usurpation of powers, why will you file it with the %& and petition for ha!eas
corpus. $his cannot !e eBclusive !ut always concurrent.
In t"e //,iction o) concurrent 3urisdiction$ ,!%s remem+er t"e t"ree (D)
/rinci/,es'
1. :ierarchy of %ourts"
2. 0upreme %ourt is not a trier of facts" and
#. $ranscendental mportance
Aven if it is in its concurrent jurisdiction, it does not mean that the party has an a!solute
ri1ht to file it with the 0upreme %ourt or %ourt of &ppeals, he has to consider the three
a!ovementioned principle.
7u/reme Court A//e,,te Jurisdiction' (+) section ; Artic,e E
N(' Rec,usion 4er/etu or 1ig"erF !, n "ig"er s rec,usion /er/etu
728 +eview, revise, reverse, modify, or affirm on appeal or certiorari, as the law or
the +ules of %ourt may provide, final jud1ments and orders of lower courts inF
7a8 &ll cases in which the constitutionality or validity of any treaty,
international or eBecutive a1reement, law, presidential decree, proclamation,
order, instruction, ordinance, or re1ulation is in =uestion.
7!8 &ll cases involvin1 the le1ality of any taB, impost, assessment, or
toll, or any penalty imposed in relation thereto.
7c8 cases in which the jurisdiction of any lower court is in issue.
7d8 criminal cases in which the penalty imposed is reclusion perpetua
or hi1her. 7Note' the Hor hi1herI clause no lon1er applies !ecause there is
no more death penalty.8
7e8 cases in which only an error or =uestion of law is involvedJ.I
$he term +eview, +everse, +evise, Modify or &ffirm must !e define separately and
distinctlyF
1. Re&ie!/ what does review consist of? t consist of +everse, +evise, Modify or
&ffirm. $he term review is a catch all provision. +eview means is to ta<e co1niEance
of the decision !ut does not cover resolution of the lower !ody. +eview means to
loo< into.
2. Re&erse/ overturn a favora!le jud1ment to an unfavora!le one or vice versa
#. Re&ise/ revision, not a simple amendment
.. Modi)%/ modification or amendment
5. A))irm/ accept the decision of the lower !ody
$he first para1raph of section a para1raph 5 is eBclusive ori1inal jurisdiction of the
0upreme %ourt. )ara1raph ! refers to its appellate jurisdiction. 0o this power to +eview,
+everse, +evise, Modify and &ffirm is within the appellate powers of the jurisdiction of
the 0upreme %ourt.
6' What does the phrase Hreview, revise, reverse, modify, or affirm Hon appeal or
certiorariI under 0ec. 5, &rt. 3, %onstitution mean? $o what <ind of appeal is it
referrin1 to?
A' $he word HappealI is !y ordinary appeal. $he word HcertiorariI is Kappeal !y
certiorariC as a mode of appeal under +ule .5 !ecause when you spea< of Hreview,
revise, reverse, modify, or affirmI it is in the eBercise of appellate jurisdiction of the 0%" it
must have come from a lower court and not an ori1inal action under +ule '5 which is a
special civil action and not a mode of appeal. 9o not !e confused.
7
6' What are the modes of appeal under +ule .1 section 2?
1. 2rdinary &ppeal"
2. )etition for review" and
#. &ppeal !y certiorari
(ut the <ind of certiorari mentioned is a mode of appeal !ecause precisely when you
spea< of to +eview, +everse, +evise, Modify and &ffirm, it is the eBercise of appellate
jurisdiction.
6' 0o how could it !e an ori1inal action when it is certiorari?
A' 9o not !e confuse, certiorari there refers to +ule '5 !ecause +ule '5 is a special
civil action, it is not a mode of appeal.
6' What is a mode of &ppeal !y certiorari?
A' +ule .5. 0o the statement there on appeal6ordinary appeal or certiorari///appeal !y
certiorari///it cannot !e a special civil action !ecause it is appellate jurisdiction of the
0upreme %ourt.
Lou do not 1o to the 0upreme %ourt !y ordinary appeal, well we are tal<in1 of civil
action. n criminal action there is notice !y appeal to the 0upreme %ourt. 0ince there is
no more automatic appeal !ecause of the removal of the death penalty, !ut it does not
mean you can no lon1er appeal to the 0upreme %ourt, how? (y notice of appeal and
when you spea< of the %onstitution, it applies to !oth civil and criminal cases.
6' $he %ourt of &ppeals has only one ori1inal eBclusive jurisdiction and what is that?
A' &ction for &nnulment of 4ud1ment of the +$%. $hat is the only ori1inal eBclusive
jurisdiction of the %ourt of &ppeals.
6' f you file an &ction for &nnulment of 4ud1ment of the M$%, where will you 1o?
A' $o the +$%.
Cener, Ru,e' $here is no way a decision, resolution or jud1ment of an inferior court
can 1o up to the %& or 0%, all must 1o to the +$%.
E#ce/tion' When the inferior court eBercises dele1ated jurisdiction. t is the only
instance that the jud1ment of the M$% can !e appealed to the %& or 0andi1an!ayan.
nferior courts are not included in section 1 of +ule .5.
6' ;nder what +ule is the eBclusive ori1inal jurisdiction of the %& 7annulment of
jud1ment of +$%8?
A' +ule .,/2n what 1rounds?
1. ntrinsic >raud/ prescri!ed after . years from discovery of fraud
2. ABtrinsic >raud/ does not prescri!ed, limited only !y application of the principle of
laches.
A//e,,te Jurisdiction o) t"e Court o) A//e,s
&ll decisions, final orders, jud1ment of the +$% and =uasi judicial a1encies. $he
eBceptions to this are the five 758, all the rest are found under +ule .#. 4ust remove the
%$&, !ecause it is no lon1er appeala!le to the %& !ut to the 0upreme %ourt.
N(' Decisions mde +% t"e Ci&i, 7er&ice Commission is //e,+,e to t"e CA-
N(' 1LUR( is not in Ru,e 9D +ecuse //e, t"ere)rom is to t"e O))ice o) t"e
4resident- Grom t"ere$ %ou go u/ to t"e CA-
8
(efore, decisions of the 5@+% are appeala!le to the 0upreme %ourt. n la!or cases.
Walan1 appeal don. What is appealed to the 0% is under +ule '5. (ut !ecause of the
7t- Mrtin Guner, 1omes case, //e, is no! )i,ed to t"e CA. $he decision of 0t.
Martin >uneral :omes, as reiterated in Ru++er Wor,d cse, is not actually removin1
the jurisdiction of the 0upreme %ourt over decisions of the 5@+%. (ut in 0t. Martin
>uneral :omes case, considerin1 in a petition for certiorari from the 5@+%, =uestion of
facts are waived and the 0upreme %ourt is not a trier of facts. t is more convenient to
file the petition with the %&. $wo years thereafter, the 0upreme %ourt laid down a
circular statin1 therein that Hpetition should now !e filed in the %&, otherwise it will !e
dismiss. 5ot appeal proper, !ut under +ule '5. +ule '5 is not a mode of appeal !ut a
special civil action.
Region, Tri, Court "s eig"t su+3ect mtter'
1. ncapa!le of pecuniary estimation (Russe, &s Vesti,F (rng% 7n Ro2ue cse)-
a. What is the determinin1 factor whether the action is capa!le or incapa!le of
pecuniary estimation? What should !e the nature?
When the money claim is incidental to the action, then it is not capa!le of
pecuniary estimation (;$ if the claim is determina!le in terms of money then it is
capa!le of pecuniary estimation.
!. ABampleF & filed a case a1ainst ( for completion of the house. ( a1reed to !uild
for & in the amount of )250,000.00. Which court has jurisdiction over the case?
$he +e1ional $rial %ourt has jurisdiction over the case !ecause it is an action for
specific performance. $he amount of )250,000.00 is merely incidental to the
case.
c. 0uppose in &Cs prayer he saidF 1. 2rderin1 ( to complete the construction of
plaintiffCs house" 2+ 2. )ay ( the amount of )250,000.00. Which court has
jurisdiction? 5o lon1er the +$%, it is already the M$% !ecause of the word HorI. t
is now determina!le in terms of money. n other words, the cause of the
transaction has !een determined in the very pleadin1 which is )250,000.00. f
the prayer is for ( to complete the construction of the house HandI pay
)250,000.00, it is not capa!le of pecuniary estimation.
d. +uleF if the case is determina!le in terms of money, then it depends as to what is
the claim. f the claim is )#00,000.00 and !elow/M$%" if the claim is more than
)#00,000.00/ +$%.
e. n the case of +ussel vs 3estil, that is precisely the issue here whether or not the
action to declare null and void a deed of heirship and partition is capa!le of
pecuniary estimation. $he 0upreme %ourt said 52M this is similar to specific
performance and in specific performance money is only incidental so that
whether or not there is a valid 1round to annul a deed of heirship and partition, is
not capa!le of pecuniary estimation.
f. $he same doctrine was enunciated in the case of (aran1ay 0an +o=ue vs the
heirs of >rancisco. ABpropriation proceedin1 is not capa!le of pecuniary
estimation while it is true that in an eBpropriation proceedin1 there is
determination of just compensation !ut that will come after the court has resolved
the issue of whether or not the 1overnment or any of its instrumentalities is
entitled to eBpropriate the su!ject property or the entity has complied with all the
re=uirements of eBpropriation. 0o this is a1ain not capa!le of pecuniary
estimation.
1. n cases li<e annulment of jud1ment, whether the jud1ment is for a certain
amount of money, !ut when you file an action for annulment of jud1ment it is not
capa!le of pecuniary estimation !ecause the principal issue here is whether the
jud1ment is annulla!le or not, money !ecomes incidental.
h. 0o as to cases of foreclosure of mort1a1e.
9
2. &ctions involvin1 title to or possession of real property or any interest therein, where
the assessed value of the said property eBceeds )20,000.00" Metro Manila eBceeds
)50,000.00. What is action involvin1 title to or possession of real property? s
annulment of title an action involvin1 title to property? t seems so, !ut not anymore
!ecause of the case of +ussel vs 3estil and (aran1ay 0an +o=ue. (efore these
cases came out, this was really complicated.
5(F Hou must n,%Ie t"e nture o) t"e ction$ nd "o! do %ou do t"t*
&ccordin1 to the HprayerI. f the prayer for money is only incidental, it is not capa!le
of pecuniary estimation. f the conjunction is HandI, a1ain it is not capa!le !ut if it is
HorI it is already determina!le !y the very alle1ations of the pleadin1s and the value
determines whether it is within the jurisdiction of the +$% or M$%.
N(' 7o +% /rocess o) e,imintion$ no n,ng ng ction in&o,&ing tit,e to or
/ossession o) re, /ro/ert%* It seems to me t"t t"e on,% ction is
AReco&er%B$ ccion /u+,icin nd ccion rein&endictori +ecuse ,, t"e rest
no! re c/+,e o) /ecunir% estimtion-
#. &ll cases which used to !e within the jurisdiction of the 4uvenile and 9omestic
+elations court are now within the jurisdiction of the +e1ional $rial %ourt.
N(' (4 158 s mended +% RA =>81 t"t t"e 7ecurities nd Regu,tion
Commission$ /rticu,r,% section ; /rgr/" 5$ /re&ious,% "nd,ed +% t"e 7EC
re no! trns)erred to t"e Region, Tri, Court +ut not to t"e regu,r courts$
rt"er to t"e s/eci, Region, Tri, CourtJCommerci, Courts- T"ere re no more
Inte,,ectu, 4ro/ert% courts +ecuse t"e% re ,red% merged !it" commerci,
courts-
.. &dmiralty and Maritime cases. 0hould an admiral always !e a party to the case?
What is admiralty cases? What are maritime cases? %arria1e of ?oods 0ea &ct.
&dmiralty should not !e confuse to someone from the military, they are maritime
cases. (ut the jurisdictional amount now is )#00,000.00 and ).00,000.006+&
,'*1. >ive years after and then five years after. $he last five years happened in
200..
5. Astate proceedin1s. $his is somethin1 new, this was not included in the old rule. +&
,'*16inferior courts now has jurisdiction already over Astate )roceedin1s and that
is whether it is testate or intestate. 9o not limit pro!ate of a will to the +$%.
'. Marria1e and marital relation is with the +$%, althou1h it is a certain <ind of +$%
!ecause it is the family court under +& -#'*. 0o you correlate it with the jurisdiction
of the +$% under +& -#'*.
N(' @et me just remind you of one provision there that 1uardianship proceedin1s and
custody of minor proceedin1s and petition for ha!eas corpus in relation thereto, it does
not necessarily follow that the >amily %ourt has eBclusive jurisdiction over petition for
:a!eas %orpus. f it is a petition for ha!eas corpus in relation to custody or
1uardianship proceedin1s then file it with the family courts. (ut if it is an ordinary
ha!eas corpus, not in any way related to custodial proceedin1s or 1uardianship
proceedin1s, then it is the re1ular +$%.
6' What are the nferior %ourts?
A' $here are four 7.8F Me$%, M$%, M%$% and M$%%.
10
6' 9istin1uish a municipal trial court from municipal circuit trial court?
A' & municipal trial court is one which is located in a municipality with a fiBed presidin1
jud1e. f there is no jud1e permanently assi1ned there, it is a circuit. $here rovin1
jud1es.
Note' n inferior courts, there are two proceedin1s that which are applica!leF 718
+e1ular procedure" and 728 0ummary procedure. $hat is why jurisdiction there 1ets
complicated !ecause of these two procedures.
6' What are the su!ject matter co1niEa!le !y the inferior courts?
A' &ctions involvin1 personal property
6' What are the actions co1niEa!le !y these courts and 1overned !y the +ules on
0ummary )rocedure?
A' >orci!le entry and unlawful detainer"
Money claims limited to the amount of either )#00$ or ).00$, re1ular procedure !ut
100$ and !elow and 200$ and !elow, Metro Manila, summary procedure.
$he +ules on 0ummary )rocedure apply only in inferior courts. &s a 1eneral rule, there
is no summary procedure in the +$%s. 0o, even if you hear that it is only HsummaryI in
the +$%, it is not the same as 0ummary )rocedure. t only means that there is no
controversy in the action, there is no opposition. t is handled !y +$% !ut it is summary.
9o not apply the word HsummaryI there as to mean 0ummary procedure.
6' n criminal cases, what is the determinin1 factor to decide whether it is under the
+$% or the M$%?
A' $he duration of imprisonment. f more than ' years, +$%..less than ' years, M$%.
f the penalty is only a fine, the determinin1 amount is ).,000Ja!ove ).,000, +$%J
!elow ).,000, M$%. (;$, if the penalty is (2$: imprisonment and fine, the amount of
the fine !ecomes immaterial.
Note' 3iolations of () 22 7(ouncin1 %hec<s @aw8 are now 1overned !y the +ules on
0ummary )rocedure irrespective of the amount of the chec< and eBclusively under the
jurisdiction of the M$%. $he same thin1 with 5e1li1ence under criminal law 7%riminal
5e1li1ence8, any crime committed throu1h ne1li1ence resultin1 in dama1e to property is
eBclusively !y the inferior court irrespective of the amount of dama1e to property.
3iolation of $raffic +ules and +e1ulations, violation of the +ental @awsJ these are all
wDin the jurisdiction of the inferior courts.
n cases of penalty of imprisonment not eBceedin1 ' years, M$%, !ut when it is 1 year
and !elow, it is summary. n claims, if )#00$ and !elow, it is M$%, !ut when it is
)200$ and !elow, and )100$, if it is outside Metro Manila, it is 0ummary.
7ndign+%n' A Constitution,,% mndted court-
$he determinin1 factor here is not the imposa!le penalty, !ut the salary 1rade of the
accused. f the salary 1rade of the accused is 2, and a!ove, it is wDin the jurisdiction of
the 0andi1an!ayan. &side from that determinin1 factor of salary 1rade, it must !e any
of the followin1 violationsF 718 &nti/?raft and %orrupt )ractices &ct" 728 ABecutive 2rder
1. and 1./& 7the )%?? cases8" 7#8 %riminal @aw on (ri!ery and 0e=uestration cases.
$he salary 1rade is found in the %lassification and %omposition &ct of 1*-,. Moreover,
all of the aforementioned violations must !e committed in relation to oneCs office.
11
RULE 1
7ec- 9-
n what cases not applica!leF n %adastral cases, @and +e1istration cases, and
Alection %ases, the +ules of %ourt are only suppletorily applica!le !ecause they have
their own rules.
7ec- >-
)roper %onstruction of the rulesF Must not favor either party !ut must favor the
administration of justice.
7ec- ;-
%ommencement of the actionF &n action is commenced upon filin1 of the complaint as
far as the plaintiff is concerned, !ut jurisprudence tells us that somethin1 else is
re=uiredJpayment of the correct or prescri!ed doc<et fees. $his applies to all <inds of
pleadin1s, whether the pleadin1 is initiatory or an answer to a complaint wDc carries wD it
a counterclaim.
A,d% &- GCU Insurnce' t is only upon payment of the correct doc<et fees that the
court ac=uires jurisdiction over the counterclaim.
Note' +emem!er that the +ules do not even distin1uish as to what <ind of
counterclaim it is, whether compulsory or permissive. (ut in the Alday case, the
payment of the correct doc<et fees is re=uired only in permissive counterclaims. $his
seems to !e the doctrine now, notwithstandin1 a clear provision in the +ules which
ma<es payment of doc<et fees necessary in compulsory or permissive counterclaims. t
is the defendant who shall file a counterclaim and as far as the counterclaim is
concerned, the defendant is the plaintiff and the plaintiff is the defendant, whether it is
compulsory or permissive.
$he +ules were amended after the &lday case was decided, !ut as it stands,the +ules
provide no distinction, the case provides a distinction, and in practice, cler<s of court do
not char1e any doc<et fees as far as compulsory counterclaims are concerned.
(rng% 59$ Legs/i Cit% &- Im/eri,' $he payment of the correct doc<et fees is
even re=uired in cases of appeal. n this case, there was already payment of the
appellate doc<et fees !ut it was insufficient and so it was dismissed on the 1round that
the court did not ac=uire jurisdiction over the appeal.
Note' Aven if you paid, !ut what you paid was not enou1h, still, the court does not
ac=uire jurisdiction over the su!ject matter of the case.
6' &s to the third/party defendant, when does the action commence? f the parties to a
case are &, (, %, and 9, how would you possi!ly situate a third/party defendant, who
amon1 them and how?
A' & files a complaint a1ainst (. ( would li<e to claim a1ainst % so he would include %
as third/party defendant.
6' f the ori1inal action was filed !y & a1ainst ( and %, would % !e a third/party
defendant?
A' 5o. $he third/party defendant in this case would !e one a1ainst whom the
defendant files a case in the same proceedin1. 0o, f & files a case a1ainst ( and (
files a case a1ainst % in the same proceedin1, % would !e a third/party defendant and if
% would further file a case a1ainst 9, 9 would !e a third/party defendant and % would
!e a third/party plaintiff.
12
&s far as & is concerned, the action is commenced from the filin1 of the complaint and
the payment of the correct doc<et fees. &s for (, the defendant, the action is
commenced from the moment the court ac=uires jurisdiction over him 7upon valid
service of summons or voluntary appearance, as the case may !e8. &s to %, the third/
party defendant, also upon valid service of summons !ecause he is also a defendantJ
and as lon1 as you are a defendant, summons is always necessary, otherwise, the court
will not ac=uire jurisdiction over the person of the defendant. (;$ when you spea< of
Kcommencement of the actionC, payment of the correct doc<et fees is jurisdiction over
the su!ject matter of the action and not over the person of the defendant.
6' f the action is filed !y & a1ainst ( and %, they are co/ defendants and in that action,
if ( files a case a1ainst %, who would !e ( as to %?
A' %rossclaimant. n that situation, who would !e the counter/counter defendant? (.
Why? (ecause the complaint was filed !y & a1ainst ( and %. $he complaint !y (
a1ainst & is a counterclaim. $he answer to the counterclaim, wDc is re=uired in cases of
permissive counterclaims, is also a1ainst (, so ( would !e the counter/counterclaimant.
9o not confuse this with a replyJreply is different in that a reply is not necessary.
&1ain, %ommencement of the action is not only from the filin1 of the proper pleadin1 !ut
also after payment of the prescri!ed doc<et fees.
RULE 5
7ec- 5-
Cuse o) Action' $he act or omission !y which a party violates a ri1ht of another.

Cuse o) Action &- Rig"t o) ction'
& +i1ht of &ction sprin1s from a %ause of &ction" it is a remedial ri1ht and it is the ri1ht
to commence and maintain an action.
6' (etween & and ( who are plaintiff and defendant, respectively, who has the cause of
action?
A' ( !ecause it was his act or omission wDc violated the ri1ht of &.
6' :ow would you eBplain that there must !e joinder of causes of action 77ec- ;8 and in
fact, in the joinder of causes of action, it is eBceptional to the theory of Kone suit for a
sin1le cause of actionC 77ec- D8?
A' f the +ule defines cause of action as an act or omission !y which a party violates a
ri1ht of another, it must !e in the defendant for he is the one who violates the ri1ht of the
plaintiff. (ut if it is in the defendant, why is it that there must only !e Kone suit for a
sin1le cause of actionC when the cause of action resides in the defendant? f we do not
clarify these thin1s, we cannot proceed !ecause this is the difficulty as it is not even
discussed that is why you <eep on inter/chan1in1 one for the other %ause of &ction and
+i1ht of &ction8. Aven in the +ules, the %ause of &ction is inter/chan1ed with the +i1ht
of &ction. $hey are used interchan1ea!ly while they are not supposed to !e !ecause
the +ule is very clear as to the definition of a K%ause of &ctionC. $he +i1ht of &ction
!elon1s to the plaintiff as a1ainst the defendant. $he %ause of &ction !rin1s a!out the
!irth of a +i1ht of &ction .

0o, when you say Kone suit for a sin1le cause of actionC 77ec-D8, the word KsuitC !elon1s
to the plaintiff. $he cause of action !elon1s to the defendant.
13
E#m/,es o) Cuse o) Action' (reach of contractF $he defendant !reaches the
contract and !ecause of that !reach, he violated the ri1ht of plaintiff. 0uppose the
!reach is constituted !y non payment of o!li1ation, so the act or omission is non
payment of the o!li1ation. (y non payment of the defendant, the ri1ht of plaintiff is
violated. $he plaintiff now has a ri1ht of action a1ainst defendant. $hat is why we say
Kone suit for a sin1le cause of action.C $he %ause of &ction is non payment. $he ri1ht of
&ction is a suit for payment of sum of money.
7ec- 9-
7/,itting Cuse o) Action'
6' ;sin1 the same eBample, how do you split a sin1le cause of action?
A' 2ne suit for collection of money and another suit for dama1es. :ere, the cause of
action is split !ecause the dama1es arose from the non/payment, a sin1le cause of
action. Lou cannot !rin1 two actions.
n a contract of lease, the lessee did not return the property at the eBpiration of the
contract. $hat failure to return the property !rou1ht a!out a ri1ht of action to the lessor.
$he lessor now files an action for recovery of property, accion publiciana, !ut aside from
the property, he would also li<e to recover the fruits thereof, unpaid rentals. :e cannot
file another case of unpaid rentals !ecause it arose from the same cause of action.
>rom one cause of action, should arise also one suit only. (ut it can happen that
!etween the same parties, & and (, there are several acts or omissions on the part of (.
0o instead of filin1 several suits !ecause the +ule provides one is to one only, one suit
for a sin1le cause of action, the +ules allow joinder of causes of action. 77ec- ;8
E#m/,e o) 3oinder o) cuses o) ction'
$here are several violations done !y ( a1ainst &.
6' ( !orrowed money from & in the amount of )10$ 4anuary 200'. &1ain, ( !orrowed
money from & in the amount of )#0$ on March of the same year. &1ain in 0eptem!er,
).00$. :ow many causes of action are there if ( does not pay all o!li1ations?
A' $here are three causes of action. :ow many ri1hts of &ction? $here are also three.
:ow many suits should & file a1ainst (? :e may file three, !ut may opt to file only one
complaint. f & opts to file only one complaint a1ainst (, collection of sum of money in
the amount of )..0$, it will !e allowed under the principle of Kjoinder of causes of
actionC.
6' What are the re=uirements for joinder of causes of action?
A' $he re=uirements for a valid joinder of causes of action areF
1. $he party joinin1 the causes of action shall comply with the rules on joinder of
parties"
2. $he joinder shall not include special civil actions or actions 1overned !y special
rules"
#. Where the causes of action are !etween the same parties !ut pertain to different
venues or jurisdictions, the joinder may !e allowed in the +$%, provided one of the
causes of action falls within the jurisdiction of the said court ant the venue lies
therein, and
.. Where the claims in all the causes of action are principally for the recovery of
money, the a11re1ate amount claimed shall !e the test of jurisdiction.
14
6' n the said eBample, is there joinder of parties?
A' 5o. $here is no joinder of parties here !ecause there is only one/party plaintiff and
one/party defendant. $here will !e joinder of parties if & files a case a1ainst N,L, and O
so there will !e joinder of parties/defendants or &, (, % files a case a1ainst N, there will
!e joinder of parties/plaintiffs, or &,(,%, plaintiffs a1ainst N,L,O, defendantsJthere will
!e joinder of parties. Kjoinder of partiesC means there must !e plurality of party/plaintiffs
or party/ defendants.
6' f there is no joinder of parties here, then why does the +ule re=uire that in joinder of
causes of action, there must !e compliance with the +ules on joinder of parties? What
is the rule under 7ec- >$ Ru,e D on )ermissive joinder of parties? What is the
re=uirement for joinder of parties?
A' $here must !e common =uestion of fact or law.
6' s that re=uired in joinder of causes of action?
A' Les. When you join causes of action, there must !e commonality of fact or law. n
the eBample 1iven, there is commonality of law.
$he causes of action joined must !e 1overned !y the same rules, so that a special civil
action cannot !e joined with an ordinary civil action !ecause these two different actions
are 1overned !y different rules.
f & intends to file collection for sum of money a1ainst ( and he also wants ( to vacate
the premises wDc he leased unto him, he cannot join an action for collection of sum of
money and unlawful detainer !ecause the former is 1overned !y re1ular or ordinary
rules and the latter is 1overned !y special rules, !ein1 a special civil action. 0o in
joinder of causes of actions, all of the actions must !e 1overned !y the same rules.
6' @et us chan1e the value in the eBample, )10$" )#0$and ).01$. f you were to file
three separate actions, where would you file them?
A' &s to the ).01$, in the +$%" &s to the )10$, in the M$%" and &s to the )#0$, also in
the M$%.
6' f you join them, where will you file the action?
A' n the +$% !ecause of condition num!er # under the rules on joinder of causes of
action.
6' 0uppose the amounts are )10$" )#0$" and )#'0$. Where will you file it?
A' &pplyin1 the fourth condition in joinder of causes of action, the action shall !e filed
with the M$% as the a11re1ate mount is only ).00$.
6' Mr. & resident of P% filed a case a1ainst Mr. (, resident of (a1uio %ity for collection
of a sum of money in the amount ).50$ and an action for recovery of property located
in (atan1as. %an & join his causes if action?
A' Les. (oth are 1overned !y the same rules, althou1h the first cause of action is a
personal action and the second is a real action. $here is no prohi!ition a1ainst joinin1
personal with real actions or an action in personam with an action in rem.
6' Which court has jurisdiction over the case if you join them?
A' +$% !ecause !oth actions are within the courtCs jurisdiction.
6' 0uppose the claim for a sum of money is for )100$, can you still join them? What
court has jurisdiction?
A' $he +$% !ecause one of the joined causes of action is co1niEa!le !y the +$%.
15
6' Where is the venue?
A' $he venue of the action may !e in P%, residence of the plaintiff" or in (a1uio,
residence of defendant" or (atan1as, the location of the property, at the option of the
plaintiff. $here is no preference of real over personal or vice versa. $he option !elon1s
to the plaintiff.
n the joinder of causes of action, you resolve the issue of !oth jurisdiction and venue
then you refer to Ru,e 9' 3enue of &ctions.
6' When is the rule on venue not applica!le (Ru,e 9$ 7ec- 9)?
A'
718 n those cases where a specific rule or law provides otherwise" or
728 Where the parties have validly a1reed in writin1 !efore the filin1 of the action on the
eBclusive venue thereof.
Note' Aven in the a1reement as to venue, it can !e interpreted either in the mandatory
or directory character, if it is not eBclusiveJthere must !e the character of eBclusivity.
7eBF HeBclusive of any other venueI" etc.8
Note' $a<e note of the doctrines in Gaton v. )alanca and Manila (an<ers %orporation
case.
RULE D
6' Who may !e parties?
A' 5atural persons, 4uridical persons, and those entities authoriEed !y law 7eBF estate
of the deceased8.
6' Who is a party in interest?
A' & party who may !e !enefited or injured in a suit. $he term Hreal party/in/interestI
applies to !oth plaintiff and defendant.
4rt% in interest &- ,g, stnding
)arty in interest is a matter of procedural law. @e1al standin1 is a matter of su!stantive
law
& party in interest is a party who may !e !enefited or injured in a suit directly. n @e1al
standin1, there is interest in the su!ject matter althou1h one may not !e directly
!enefited or injured !y the suit.
16
No&em+er 5D$ 5??>
$he case of >?; 3. &lday is a!out counterclaim and doc<et fees.
6' s non/payment of doc<et fees a 1round for dismissal?
A' +ules provide for payment of doc<et fees for counterclaim irrespective whether the
counter is permissive or compulsory. $he +ule provides no distinction as provided in
+ule 1.1 0ec. ,. :owever in this case the 0upreme %ourt provided for a distinction.
6' 0o if presented with this pro!lem which would you follow, the rules or jurisprudence?
& little !ac<1round would help.
A' When the 0upreme %ourt amended the rules re1ardin1 doc<et fees it did not have
any distinction. $he implementin1 circular however !ecame a su!ject of several protests
which re=uired payment of doc<et fees of counterclaim whether compulsory or
permissive. (ecause of the protests, the 0% recalled the circular. :owever in 2005, the
() lifted their protest 1ivin1 way to strict implementation of +ule 1.1 0ec. ,. (ut up to
now the cler<s of court in particular when there is compulsory counterclaim no fees are
collected. $his is what they do in practice. :ence it so appears now that the present
policy is in accordance with the >?; decision.
6' $ests to determine the nature of counterclaimF
A'
1. When the issues arise from the same transaction
2. Whether res judicata will !ar su!se=uent filin1 of claim !y defendant
#. Avidence test rule Q whether the same evidence is re=uired
.. Whether there is lo1ical relation !etween the claim and counterclaim
6' Ginds of )leadin1sF
1. %omplaint
2. &nswer
#. #
rd
party complaint
.. %ounter claim
5. +eply
'. ntervention
6' Who may file a counter counter/claim?
A' $he plaintiff
6' 0uppose & filed a case a1ainst (, a1ainst whom may ( file a cross/claim?
A' 5o one !ecause there is only a sin1le defendant.
6' May ( file a #
rd
party complaint?
A' Les a1ainst a party not an ori1inal party to the action to which he sou1ht for
indemnification, su!ro1ation or other relief.
6' +ules on counter/claimF
A'
1. $he counterclaim must !e within the jurisdiction of the court !oth as to the nature
and as to amount.
2. Lou cannot anymore su!divide a counter/claim. & counter/claim which eBceeds the
jurisdiction of the court must !e dismissed.
17
RULE =
6' )arts of a )leadin1
A'
1. %aption
2. (ody
#. +elief
.. 0i1nature and &ddress
5. 3erification
'. %ertification a1ainst non/forum shoppin1
(od%
1. $he part which states the ri1ht of action
2. 4urisdictional re=uirementsF
a. $hat the plaintiff has a le1al capacity to sue and in the case of defendant the
capacity to !e sued. f you do not alle1e le1al capacity the complaint is
immediately dismissi!le.
!. n case of defendant, his address or at least his wherea!outs for service of
processes
c. $he rule provides that alle1ations of certain matters to !e made with
particularity such as fraud and mista<e or with 1enerality such as malice,
intent or jud1ment.
d. &lle1ations must alle1ed only ;ltimate facts which are the !ases on oneCs
claim or defenses.
Action+,e document
6' $wo 728 ways of pleadin1 an actiona!le document
A'
1. (y settin1 forth the su!stance of such document in the pleadin1 and attachin1 the
document thereto as an anneB" or
2. (y settin1 forth said document ver!atim in the pleadin1 if such document is not
len1thy.
6' :ow to contest an actiona!le document
A' (y denyin1 specifically under oath. >ailure to deny results in the admission of the
1enuineness and due eBecution of the document.
6' ABceptions?
A'
1. When the adverse party is not a party to the instrument
2. When an order for the inspection of the document was not complied with.
6' Meanin1 of ?enuineness
A' Means that the document is not spurious, counterfeit or of different import on its face
from the one eBecuted !y the party.
6' Meanin1 of 9ue eBecution
A' Means that the document was si1ned voluntarily and <nowin1ly !y the party whose
si1nature appears thereon, that if si1ned !y some!ody else such as representative that
he had the authority to do so, that it was duly delivered and formalities complied with
18
6' >our 7.8 criteria of authenticity and due eBecutionF
A'
1. 0i1nature is not for1ed or falsified
2. $he contents of the instrument is the same at the time it was si1ned
#. $hat all formal re=uirements are considered complied with
.. $he same document has !een si1ned and delivered
Cse o) (enguet (doctrine)
f the authenticity and due eBecution of a document is duly proved, it eBtends only to the
eBtrinsic validity of the document and not the truth of the contents of the document,
which is the intrinsic validity. $he records of the case clearly shows that the documents
were contested.
7ICNATURE AND ADDRE77
6' )urpose
A' $o assert that the parties had read the pleadin1 and to <now where the processes of
the court may !e properly served. $he si1nature must !e of the parties themselves
VERIGICATION
6' )urpose
A' 0ame purpose as si1nature
6' s it not a surplusa1e since it has the same purpose as si1nature?
A' 5o, !ecause not all pleadin1s re=uire verification
6' Which is more important, si1nature or verification?
A' 0i1nature is more important !ecause when the pleadin1 is not si1ned the effect is
that the pleadin1 is not deemed filed. $he remedy is to re/file. @ac< of verification on the
other hand is not fatal. $he remedy is to file an amendment. f !oth are present,
verification is confirmation of the si1nature.
CERTIGICATION ACAIN7T GORUM 71O44INC
$he certifier attest that he has not commenced any other action a1ainst the same
parties with the same issues, or if there is a case pendin1 a statement of the present
status thereof or if he should learn of a similar action or claim filed he should inform the
court within 5 days therefrom.
6' What is the effect of lac< of certification?
A' 9ismissal under +ule 1,, lac< of certification of non/forum shoppin1 is not correcti!le
!y amendment.
n practice some lawyers separate verification from certification !ut some does not. (oth
the verification and certification must !e si1ned !y the parties themselves eBcept if the
party is a corporation and the lawyer is the in/house counsel.
n case of three or more plaintiffs, all of them must si1n the verification and certification.
NOTE' %ertification of non/forum shoppin1 is very important !ecause of it can !e
proved that a!sence of such is malicious you can even !e cited in contempt.
6' What is >orum/shoppin1?
A' )arty see<s a favora!le opinion in another forum throu1h means other that appeal or
certiorari !y raisin1 identical causes of action, su!ject/matter and issues.
19
6' +emedy?
A' Motion to dismiss !ased on litis pendentia or res judicata
NOTE' 9o not confuse forum shoppin1 with pre/judicial =uestion. n forum shoppin1 it
involves even the same case file in other tri!unal. n pre/judicial =uestion it is necessary
that one case is civil and the other one criminal which is not the issue in forum
shoppin1.
RULE 8
6' $he followin1 defenses are not waived even if not raised in a motion to dismiss or
answer 7cross refer to 0ec. - +ule 158F
18 @ac< of jurisdiction over the su!ject matter
28 @itis pendentia
#8 +es judicata" and
.8 )rescription of action
NOTE' & compulsory counter/claim not interposed is !arred eBcept 0ec. 10 +ule 11.
DEGAULT
6' When may a party !e declared in default?
A' &fter the lapse of period within which to file an answer and defendant did not file an
answer seasona!ly.
6' May a plaintiff !e declared in default?
A' Les plaintiff can !e declared in default relative to a counterclaim especially of the
counterclaim is permissive.
6' & files a case a1ainst ( for unlawful detainer. ( received summons 4an. 5 and on
4an. 25 ( has not filed any answer yet. May ( !e declared in default?
A' 5o ( cannot !e declared in default !ecause the case is unlawful detainer which falls
under summary proceedin1s. n summary proceedin1s a motion to declare a party in
default is one of the prohi!ited pleadin1s.
6' 0uppose the case is one for collection of sum of money, may he now !e declared in
default? f yes, how?
A' Les ( can !e declared in default !y &Cs filin1 of a motion to declare ( in default.
6' $wo <inds of motionF
A'
1. @iti1ated
2. 5on/liti1ated
NOTE' f it is esta!lished that defendant did not receive a copy, it would !e irre1ular for
the court to declare 9efendant in default.
T"e /"rse As in de)u,tB no ,onger //,ies- $he only 1round for declaration of
default is failure to file an answer seasona!ly.
6' +emedy of defendant declared in default
A' >ile a motion to lift order of default
f deniedF Motion for reconsideration
f deniedF %ertiorari under +ule '5 on the 1round of 1rave a!use of discretion
20
6' 0uppose there is no 1round?
A' Wait for rendition of jud1ment !y default, you now have ordinary remedies such as
appeal or new trial or relief from jud1ment
NOTE' f the defendant is declared in default, he loses his personality !efore the court
!ut !y filin1 a motion his personality is restored.
Order o) de)u,t is di))erent )rom 3udgment +% de)u,t-
& jud1ment !y default is always preceded !y order of default. $here is only one
eBception to this and that is Ru,e 58$ 7ec- D$ 4r- C which is refusal to comply with
modes of discovery.
NOTE' 0upreme %ourt always loo<s down on default order so if confronted with this
pro!lem your inclination should always !e a1ainst default orders.
$here are no injunctive relief in default orders.
RULE 1?
6' $wo 728 %lassifications of &mendmentF
A'
1. &mendment a matter of ri1ht or !y leave or court
2. 0u!stantial or formal amendment
6' Affect of amendment?
A' &mended pleadin1 supercedes the ori1inal.
6' $otally?
A' 5o, admissions in the ori1inal pleadin1 may !e used as evidence.
6' & files a case a1ainst ( for collection of sum of money. 0ummons was served 4an.
10 and ( filed an answer 4an. 20. May & still amend his complaint?
A' Les !ecause the period to amend a complaint as a matter of ri1ht is anytime !efore a
responsive pleadin1 has !een served. >ilin1 and service are two different thin1s. >ilin1
is with the court while service is to the parties.
NOTE' &mendment as a matter of ri1ht is a!solute when the plaintiff has not yet
received a copy of responsive pleadin1. f a motion to dismiss is filed, such is not a !ar
for a plaintiff to amend his complaint.

21
RULE 1?
6' f & filed a case a1ainst ( for a sum of money and then there was no alle1ation as to
a demand, hence the issue of demand is not within the jurisdiction of the court. 9urin1
the presentation of plaintiffCs evidence, the witness of the plaintiff would li<e to present
as evidence the demand letter, ( o!jected the same on the 1round that it was not raised
in the pleadin1 and therefore the court has no jurisdiction over the issue. f you were the
jud1e, how will you rule on the o!jection?
A' Lou will 1rant the o!jection !ecause the court has no actually jurisdiction over the
issue. n 1rantin1 the o!jection for denyin1 the presentation of such <ind of evidence
!ecause it is without jurisdiction of the court.
6' &s plaintiff, what will you do?
A' ;nder +ule 10 section 5, &mendments to conform or authoriEe presentation of
evidence, the plaintiff may move for amendment and such must !e 1ranted to !y the
court with li!erality. 0o even in this instance, at this point in time of the proceedin1
7durin1 trial8, amendment is still availa!le. t is an amendment with leave of court. f the
court does not 1rant it, it can !e construed as 1rave a!use of discretion on the part of
the court which is adept to certiorari or mandamus as the case may !e.
&s a 1eneral rule, the evidence must conform to the pleadin1. $his time, considerin1
that the evidence is not within the jurisdiction of the court, it should !e the pleadin1 that
must conform to the evidence to authoriEe the presentation of evidence. $hat is the
meanin1 of section 5 +ule 10.
6' 0uppose the amendment sou1ht !y the plaintiff here is a chan1e of cause of action,
will you 1rant it?
A' Aven if it is a chan1e of cause of action, it must !e 1ranted with li!erality. (ut as a
1eneral rule, never with jurisdiction. %ause of action yes !ut jurisdiction no.
6' Why?
A' (ecause if for eBample you filed a case with the +$% for sum of money in the
amount of )#50,000.00. $hat is definitely outside the jurisdiction of the +$% and you
as< for amendment with leave of court so that the +$% will have jurisdiction, and
chan1ed the amount claimed to )500,000.00, you cannot do that !ecause this is an
issue of jurisdiction. Lou cannot do that. Why? !ecause remem!er, under the latest
jurisprudence on that matter, jurisdiction over the su!ject matter is not only conferred
upon filin1 of the necessary pleadin1 !ut payment of the correct doc<et fees. 0o the
doc<et fees you paid for is only for the amount of )#50,000.00, and you want to chan1e
it to )1 million, you wont !e allowed. t is an indirect way of escapin1 the payment of the
correct doc<et fees. $his is ta<en from the old Mar %opper doctrine.
6' :ow would you distin1uish an amended pleadin1 from a supplemental pleadin1?
A' &s to the purpose, an amended pleadin1 aims to chan1e certain facts while in a
supplemental pleadin1 you donCt chan1e anythin1, you just as< for supplement. &s held
in the +emin1ton case, there is no need for the issuance of a new summons !ecause it
did not chan1e the cause of action. f the pleadin1 chan1es the cause of action, then
another summons is necessary !ecause as a 1eneral rule, an amended pleadin1
supersedes the ori1inal pleadin1.
6' Aven if it superseded the ori1inal pleadin1, is there anythin1 admissi!le from the
ori1inal pleadin1?
A' &dmissions remain even when the ori1inal pleadin1 has !een superseded pleadin1.
What <ind of admissions are they? $hey used to !e eBtrajudicial admissions !ut
jurisprudence now, under the new rule, these are already considered as judicial
22
admissions. Lou have to distin1uish that !ecause the effect of a judicial admission is
different from an eBtra judicial admissions where!y the latter re=uires or calls for proof,
re=uires for offer. (ut !ecause these are judicial admissions, you need not to offer them.
t can !e used !y the court as !asis of its decisions, jud1ment or resolution.
RULE 11
5eBt rule is only a!out periods. $he only thin1 to remem!er here in +ule 11 are the
followin1 days/ 10 days, then 15 days, then #0 days and finally '0 days. $andaan nyo
lan1 yon and we are throu1h with +ule 11. 0o this is a!out when to file responsive
pleadin1, ta<e note they are responsive pleadin1 so if there is nothin1 to respond to, a
responsive pleadin1 is not necessary !ut if it is re=uired, when are you suppose to file
them?
6' 0o 10 days, what pleadin1 must !e filed within the period of 10 days?
A'
1. &nswer to the complaint when it is covered !y the +ules on 0ummary )rocedure"
2. &nswer to an amended pleadin1 if the amendment is not a matter of ri1ht"
#. +eply"
.. &nswer to the counterclaim, cross claim and answer to a complain in intervention"
5. &nswer to a pleadin1 after a !ill of particulars has !een 1ranted.
6' @etCs 1o to 15 daysF
A'
1. &nswer to a complaint under re1ular procedure"
2. &nswer to an amended complaint when the amendment is a matter of ri1ht"
#. &nswer filed !y a third, fourth or fifth party defendant as the case may !e.
6' Why is the answer in a complaint in intervention is only 10 days?
A' +emem!er that the one who answers it is already within the jurisdiction of the court.
Gaya 10 days nalan1 !ut the one who is suppose to answer within 15 days is not yet
within the jurisdiction of the court li<e a fourth party defendant is not within the
jurisdiction of the court. 0o he must !e first !efore he is !rou1ht within the jurisdiction of
the court that is why you have the 15 days period.
6' :ow a!out the #0 day period?
A' $here is only one instance/ when the defendant is a forei1n corporation or forei1n
private entity and summons was served to the corporation throu1h the 1overnment
official in the )hilippines. $he #0 day period must !e counted not from the receipt of the
1overnment official !ut from the receipt of the defendant itself, the corporation. ;nder
section 1# of +ule 1., you will find out that a forei1n private entity can !e served with
summons in three 7#8 ways. Gaya tatandaan nyo. f it is served to the 1overnment
official in the country, #0 days, otherwise 15 days. $his is the only #0 day period, wala
n1 i!a sa rules.
5ow finally, we 1o the '0 day period/ When summons is served under section 15 of
+ule 1. or what we call eBtra territorial service. (ut ta<e note, there is a cross reference
in section 15, that is 1. and 1'. (efore and after. $hat summariEes +ule 11.
RULE 15
+ule 12 is only the (ill of )articulars. (ill of )articulars may!e filed !y any party that is
suppose to file a responsive pleadin1. (efore one files a responsive pleadin1 and he
wants to !e clarified on certain matters, then instead of filin1 of the answer, he must file
a motion for a (ill of )articulars.
23
6' Who may file a motion for a !ill of particulars?
A'
1. 0o this can !e filed !y the plaintiff with re1ard to a permissive counterclaim.
2. $his can !e filed !y the defendant with respect to the complaint.
#. $his may a1ain !e filed !y the plaintiff if he intends to file a reply.
6' &nyone who is !ound or re=uired to file a responsive pleadin1 may as< for a !ill of
particulars. What does this mean?
A' t simply means that you are not clear on a matter in his alle1ation, so clarify it.
6' 0uppose in the complaint of the plaintiff, the plaintiff joined three 7#8 causes of action.
&ssumin1 the defendant owns him )50,000.00, on another occasion he owes him
)1#0,000.00 and another occasion he owes him )#00,000.00. $here was no alle1ation
of when and how it was loaned.
A' $hat is a very clear case that calls for a !ill of particulars.
&lthou1h a !ill of particulars is there in the rules, !ut you will note that this is very
academic. Cm tellin1 you now !ecause in actual practice you donCt as< for a !ill of
particulars. ?ood lawyers wonCt as< for that. What will do? Cll file a motion to dismiss
for lac< of cause of action. f Cm not clear on the matter, motion to dismiss so heCll
amend the pleadin1. $hus, you !ou1ht time. @i<e default, if were the plaintiff and he did
not file an answer, will not move for declaration of default. Why? will as< for
presentation of evidence, after all if the party is in default, you are delayin1 your own
case. Why? !ecause there are many remedies to default and the court will 1rant this
remedies. Motion to set aside the order of default, motion for reconsideration then
jud1ment and you 1o all over a1ain and when you move up to the 0upreme %ourt the
latter will say, no default, the party must !e 1iven due process. 9onCt fi1ht it out of
technicalities, so remand the case for further proceedin1s after fifteen 7158 years.
&lthou1h these are very 1ood pro!lems in the !ar !ut later on, if you were in practice,
how can you avail of what you donCt even <now. @i<e in the !ill of particulars, it may not
!e that important !ut it mi1ht !e 1iven in the !ar.
6' 0o when do you count the period?
A' When you file a !ill of particulars, the period to file a responsive pleadin1 is stop and
youCll only have the !alance of the period within which to file an answer if it is denied !ut
if its 1ranted, you have to file a !ill of particulars within the period of 10 days !ut the 10
day period must !e counted from the receipt of the resolution 1rantin1 your motion for a
!ill of particulars.
6' 0uppose & filed an action a1ainst ( and the latter received the summons in 4anuary
1. 0o he has ordinarily up to 4anuary 1' in which to file an answer !ut on 4anuary 5,
instead of filin1 the answer he filed a motion for a !ill of particulars. $he court 1ranted
the !ill of particulars on 4anuary 20, then the =uestion is when should ( file the answer?
A' 5o answer yet !ecause it is & who should clarify !ecause the !ill of particulars is
1ranted, the order is directed to & to amend, to chan1e what is suppose to !e chan1e,
and if he does not, this may !e 1round for dismissal.
5ow, after he has chan1e, the 15 day period will no lon1er apply. $he 15 day period
ordinarily within which to file an answer no lon1er apply !ecause of that !ill of
particulars. 0o what applies? Lou have only the !alance of the period !ut not less than
5 days. )areho lan1 yan n1 motion to dismiss under +ule 1'. ;nder +ule 1', when the
defendant files a motion to dismiss and it is denied !y the court, you do not appeal.
Why? t is an nterlocutory order. 0o the defendant has only the remainin1 !alance of
the period !ut not less than 5 days.
24
9o not apply the 9omin1o Mated doctrine, the fresh day rule. $his is a 0eptem!er 2005
case, 9omin1o mated et al vs %ourt of &ppeals penned !y 4ustice %orona. (a1o yan
ha, 0eptem!er 1., 2005, this is the fresh day rule or the fresh day doctrine. (a<a
luma!as sa !ar, atleast you <now. t simply says that when a motion to dismiss is filed
and then the court denies it or 1rants it as the case may !e, of course denied. Lou have
the entire period all over a1ain, 15 days, not just the !alance. (ut do not apply it here in
a !ill of particulars and motion to dismiss !ecause the time to file the answer is the
remainin1 !alance which must not !e less than 5 days.
0o the old rule applies only to +ule .2, .# and .5. Lun lan1 an1 may fresh day doctrine.
t applies to +ule .1 as well. Lou have the entire period all over a1ain. n fact my opinion
on the matter is that it applies as well to +ule '. and '5 !ecause in +ule '5, a motion
for reconsideration is mandatory.
RULE 1D
+ule 1# is a!out >ilin1 and 0ervice. n 0ervice, what do you use? )owder or lotion?
6' What is >ilin1 and what is 0ervice? Which comes first, >ilin1 or 0ervice? 9istin1uish.
A' &s to initiatory pleadin1, filin1 comes first, service later. $hereafter, service comes
first and filin1 later. 0o when you file a complaint, initiatory pleadin1 yan, you donCt serve
first !ecause it is the court that serves the same to1ether with the copy of the summons
to the defendant so filin1 comes first. (ut answer, !efore the court receives the same for
filin1, you must first esta!lish that you have served a copy thereof. &side from initiatory
pleadin1, ordinarily processes that emanated from the court, filin1 comes first then
service later. >or eBample, jud1ment. & jud1ment that emanates from the court, this is
first filed and then served a copy to the party. +esolutions and orders, they are first filed
and then served.
We are 1oin1 to discuss three 7#8 topics under +ule 1#, so first is Mnner or Mode o)
Gi,ing nd Mnner or Mode o) 7er&ice. $he second topic is com/,eteness o) Gi,ing
nd com/,eteness o) ser&ice. &nd the third topic is /roo) o) Gi,ing nd 4roo) o)
7er&ice. f you can answer that, tapos nanaman an1 +ule 1#.
6' What is the mode or manner of >ilin1?
A' $here are two 728F
1. )ersonal >ilin1" and
2. >ilin1 !y +e1istered mail.
Lou have to distin1uish now !ecause in service it is different. :ow do you personally
file?
6' :ow a!out service, what are the modes?
A' $here are three 7#8F
1. )ersonal 0ervice"
2. 0u!stituted 0ervice" and
#. (y mail. ;nder mail, it is divided in two <inds, either re1istered or ordinary mail.
mportante eto !ecause you mi1ht as< re1ardin1 completeness and proof. 0o ma1/
didiffer yon, as to completeness and proof.
What is )ersonal 0ervice? &nd !y mail? :ave you ever mail !y re1istered mail?
(y 0u!stituted 0ervice. 9o not confuse this with su!stituted service of summons.
25
6' $o whom do you leave a copy? Which %ler< of %ourt?
A' n every court, when you say +$%, isa lan1 yon. Gasi an1 concept nyo pa1 sina!in1
+$%, an1 dami nyon. sa lan1 yon, !ut several !ranches. Avery +e1ional $rial %ourt in
a judicial re1ion has only one cler< of court. (ut each !ranch has what you called a
!ranch cler< of court. $his city here in Metro Manila, for eBample here in Ma<ati, there
are more than 50 !ranches, !ut in Manila or PueEon %ity there are may!e a hundred
supposed or even more. Aach !ranch has a !ranch cler< of court. $his 0u!stituted
0ervice is not with the !ranch cler< of court !ut the %hief %ler< of %ourt. f your !oo<
says in the !ranch cler< of court, thatCs wron1. t should !e the %hief %ler< of %ourt and
the latter is the one in char1e with all the !ranches. n fact the sheriff is under the cler<
of court. $hat is su!stituted service.
6' What do you have to esta!lish to avail of su!stituted service?
A' $hat is section -, do not confuse that with section *. Lou cannot avail of section - if
the su!ject matter to !e serve are final resolution or jud1ment, that is under section *.
0ervice of jud1ment, service of final order under section * is different from service of
pleadin1s under section -. n section -, there is su!stituted service of pleadin1s !ut
when you 1o to section *, you do not avail of su!stituted.
6' What is the provision of section *? t is throu1h pu!lication. 0o that the period for
finality of the resolution or jud1ment starts to run only after availment of section *. n the
case of su!stituted service, that !e1ins to run upon receipt of the cler< of court of
whatever pleadin1 is served.
9o not confuse that with +ule 1., personal service is no lon1er used in summons.
)ersonal service is used now in +ule 1#. f you 1o to +ule 1., they do not use anymore
personal service and you must follow that. It is ,red% c,,ed 7er&ice on t"e /erson
o) t"e de)endnt under Ru,e 19. $hat is as to summons !ecause su!stituted service
of summons is very different. While here in service of pleadin1s, that is still personal
service. f you cannot find the person to whom it must serve, you have to leave at the
residence where a person of sufficient a1e and discretion is found, or in the office to a
person in char1e thereof. $hese three 7#8 ways are is still personal service of pleadin1s.
9istin1uish from the service on the person of the defendant under +ule 1..
6' When is filin1 complete?
A'
1. n )ersonal filin1, after actual delivery.
2. f it is !y re1istered mail, the postin1 is the date of filin1. When you mail !y
re1istered mail, the post office stamp is the date of filin1 so that within the 15 day
period for eBample, the stampin1 is in the 15
th
day, that is within the 15 day period.
6' When is service complete?
A' Lou have to distin1uish whether it is !y ordinary mail or re1istered mail.
f it is !y re1istered mail, from the actual receipt of the mail or 5 days thereafter from the
first notice of the postmaster. $he post office sends three notices, it is the first and not
the last. :indi eto unlawful detainer. n ;nlawful detainer, you count the one day period
from the last demand, dito first notice. n su!stituted service, upon actual receipt of the
cler< of court.
6' )roof of filin1
A'
1. f it is personal filin1, the stamp made !y the cler< of court.
2. f it is !y re1istered mail, proof is the re1istry receipt.
26
6' )roof of 0ervice
A' $a<e note of the re=uirement, now of an affidavit of the sender, especially if you are
filin1 with the court of appeals or the supreme court under +ule '' of the +ules of %ourt,
that is a 1round for the dismissal of your petition if you do not include an affidavit of
service. f you do not include as proof that you have serve to the adverse party the
affidavit of the sender to1ether with the re1istry receipt stamp, that is a 1round of the
dismissal !y the %ourt of &ppeals or the 0upreme %ourt.
6' $here are many instances when you try to esta!lish that you have filed a pleadin1
with a court, the court cannot find anymore the pleadin1 you have filed. 0hould the
record of the court prevail over your personal record?
A' Lou present your own copy <asi <aramihan n1ayon na<a<ali1taan.
@et me 1ive a special mention to section 11. t says there priority of personal service. 2f
the many modes we have discuss, the +ules seems to prioritiEe personal service, why?
$his is new in the 1**, +ules. f you cannot avail of personal service, you have to ma<e
an eBplanation statin1 therein the reasons why you cannot avail of personal service.
0ervice and filin1 cannot !e made without that written eBplanation.
What is the historical !ac<1round re1ardin1 this amendment of +ule 1#, these addition
to the rules? (ecause several practicin1 lawyers would try to delay for one reason or
the other, some reasons are valid !ut most reasons are not. $hey would not eBpedite
the administration of justice. 0o the 0upreme %ourt amended the +ules modestly and
moderately !y simply prioritiEin1 personal service. >or eBample here in Ma<ati, in the
same !uildin1, the plaintiffCs counsel is in the .
th
floor while the defendant is in the 1
st
floor. What do they do? $hey mail pleadin1s to !uy time. 5o amount of reason will
invalidate your delay, if that is the case. &lthou1h the court would not mind it, !ut now
with this rule, that must !e practiced. $he rule calls for a valid reason as lon1 as he has
a reason and the usual reasons are for convenience and practicality or lac< of
personnel to serve the same or there are other reasons find li<e !ecause of the
horrendous traffic in Metro Manila.
Ru,e 19
+ule 1. is very, very important. &s a warnin1, summons is sin1ular, the plural is
summonses. am warnin1 you that !ecause one of my friend eBaminers did not correct
the eBamination !oo<let anymore !ecause it states Hsummons areI, he said this
eBaminee is not yet ready to !ecome a lawyer. :e underscores that, 1rade .*. Aven if
you 1et *0 in the (ar, if you have .*, you are already dis=ualified and only !ecause of
that 1rammar. &1ain, 0ummons is sin1ular, the plural is 0ummonses. &lso an eBaminer
in %riminal @aw, who in the same manner, did not !other to chec< the eBamination
!oo<let !ecause of the word HstafaI was misspelled. 0o !e very careful with your
1rammar.
6' What is a 0ummons?
A' s a process issued !y the court and served upon the defendant for the purpose of
ac=uirin1 jurisdiction over him and to direct him to file responsive or an answer.
6' What is the purpose of a 0ummon?
A' $here are only two ways !y which the court ac=uires jurisdiction over the person of
the defendantF
1. 3alid 0ervice of 0ummons. +emem!er that it must !e 3&@9. When you say service
of summons that is wron1 !ecause even if you serve the summons and the same
!ut the service is invalid, the court did not ac=uire jurisdiction.
2. 3oluntary &ppearance
27
$o whom is the 0ummons addressed?
$o1ether with the summons is a copy of the complaint.
6' Who serve the summons?
A' $he sheriff.
6' :ow does the sheriff serve summons? What are the modes of service of summons?
A'
1. 0ervice on the person of the defendant
2. 0u!stituted service
#. ABtraterritorial 0ervice 7under section 1., 15 and 1'8
a. 0ervice on the person of the defendant
!. 0u!stituted 0ervice
c. )u!lication
d. (y any other modes authoriEed !y the court
Note' T"ere is no ser&ice o) summons +% registered mi,
6' Why is there no service of summons !y re1istered mail?
A' (ecause the purpose of service of summons is to ac=uire jurisdiction over the person
of the defendant and if it is !y mail, it is dependent already on the mail proper. $he court
will not allow that. 0o the sheriff who is tas< to serve the summons will serve the same
either service on the person of the defendant or su!stituted service.
6' &fter he has done that, what should he do?
A' $he sheriff will file a return.
6' What is this return?
A' $his is one of the most important words in special proceedin1s li<e ha!eas corpus.
&no na<ala1ay sa return? &lam nyo crucial yan, !ecause when the sheriff files a return
that he served summons !y su!stituted service, it re=uires that he must have eBerted
effort and his effort is futile that is why su!stituted service is availed of. @i<e and :a!eas
%orpus, you recall your lessons in ha!eas corpus, very prominent yun1 return, there is
a return as a plea and a return as an evidence.
6' &side from the sheriff, who may serve summons?
A' &ny officer authoriEed !y the court.
6' %an the plaintiff serve the summons?
A' $he rule says the sheriff, the deputy sheriff and any person authoriEed !y law, <un1
susundin nyo lan1 yon, you rationaliEe.
n the analysis of service of summons, you have to <now to whom it must !e served. 0o
you have to consider the defendant. +emem!er under section 1 of +ule #, that the
defendant of parties to an action may either !e a natural person, a juridical person or
any entity authoriEed !y law. Lou apply that in cases of defendant. n fact we discuss
a!out necessary and indispensa!le party, so the first thin1 you have to as< AW"o is t"e
de)endnt*B !ecause the mode of service somehow depend who the defendant is.
6' f the defendant is a minor to whom should the summons !e served?
A' $o the minor and the parents or 1uardian as the case may!e.
28
6' 0o how many summons?
A' $wo 728 summonses. f you only serve it to the parents, that is wron1, it will !e an
invalid service of summons. $he rule says service on the minor &59 service on the
parents or 1uardian or 1uardian ad litem.
6' f the defendant is an insane or an incompetent, to whom summons must !e served?
A' )ersonally to the insane or incompetent and personally to the 1uardian.
6' Why will you serve the summons to an insane defendant? @o<o lo<o na isserve mo
pa n1 summons?
A' (ecause an insane person is not insane all the time. $hey have lucid interval. (ut an
im!ecile is different from an insane !ecause the former is not =ualified !ut the latter is
=ualified, therefore there is no provision re1ardin1 an im!ecile. f you are 1iven a choice
!etween an im!ecile and an insane, you choose the latter, must !e insane.
6' f the defendant is a prisoner, to whom summons !e served?
A' $o the prisoner himself or to the deputiEed sheriff. 0o he is not within the concept
HauthoriEed !y lawI !ecause the rule says authoriEes the sheriff or the warden. $he rule
itself authoriEes the warden or one char1ed with the jail to serve it !ut it is served to the
prisoner or upon the prisoner not to the sheriff. t is only the sheriff or the warden who is
authoriEed !y the rules to serve it. :e is deputiEed. $hese are natural persons. $he rule
says it must !e served upon the person of the defendant themselves !ut does it follow
that it cannot !e serve throu1h su!stituted service? t can. 0o if ever it is served upon
the warden, it is already su!stituted service. $a<e note of that. t is no lon1er service
upon the person of the defendant !ut rather su!stituted service. Why? !ecause that is
where the defendant resides, so you serve it on the person in char1e thereof. 0o
na1i1in1 su!stituted service. Ma1andan1 catch yon if it is 1iven in the pro!lem.
6' What <ind of service is service upon the prisoner?
A' $he answer is the rule re=uires personal service or service upon the person of the
prisoner !ecause the rule says service on the prisoner throu1h the warden. 0ervice on
the warden !ecause he is in char1e thereof. Aven in cases of this special <ind of
defendant, service of summons may still !e made throu1h su!stituted service.
6' What are the re=uirements for su!stituted service? Where do you serve su!stituted
service?
A' &t the residence of the defendant to a person of suita!le a1e and discretion residin1
therein. $he place must !e the residence of the defendant and you just cannot leave it
to anyone there in the residence, it must !e a person residin1 therein and must !e of
suita!le a1e and discretion. $here are many cases to that effect.
6' f you cannot find his residence, or there is no residence or the residence is
un<nown?
A' &t the office of the defendant to a person in char1ed thereof.
6' f you leave it to a security 1uard in the office of the defendant, suppose in a
condominium unit, the office is at the .
th
floor, pa1 paso< n1 sheriff sa!i n1 1uard Hdo ho
pwedeI, tapos iniwan sa <anya n1 sheriff, valid?
A' $hat is not valid !ecause the security 1uard is not in char1e thereof. >or eBample are
the cases of Millenium and A( 3illarosa doctrine. 0u!stituted service means the service
is not anymore to the person of the defendant !ut rather to someone else whether
residin1 in his residence and must !e of suita!le a1e and discretion or to someone in
char1e of his office at his office to !e valid.
29
&nd another !asic re=uirement is A)ter com/,%ing or )ter e#erting ernest e))ort to
ser&e summons on t"e /erson o) t"e de)endntB. 0o that is su!stituted service. Lou
will note, 1oin1 to +ule 1# that su!stituted service of pleadin1 is handin1 over the
pleadin1 to the cler< of court, personal service therein includes service in the office and
in the residence.
6' Lou will note that in summons, it is the residence and then office, in +ule 1# it is
office then residence, why is that so? :ave you ever thou1ht of that why 1anun an1
priority?
A' (ecause when summons is supposed to !e served, there is no counsel yet so the
priority is the residence while in pleadin1, there is already a presumption that he is
already protected or he has already a counsel of choice. %ounsel de parte <aya 1anun.
6' $here is another defendant which is a corporation and under this headin1, the
corporation can either !e of two <indsF
A'
1. )u!lic corporation" and
2. )rivate corporation
a. 9omestic private entity" and
!. >orei1n private entity
6' n pu!lic corporation, to whom must summons !e served?
A' %orrelate this with section 1, +ule #. n local 1overnment unit, the head of the state.
f it is a province the 1overnor, vice 1overnor. f it is a city, the city mayor or vice mayor.
f it is the municipality, the municipal mayor and in cases of the !aran1ay, the !aran1ay
captain. Lou can also serve it on the vice mayor in the a!sence of the mayor. 0o any
officer of that pu!lic corporation, summons may !e served. (ut you have to esta!lish
that it was received. Lan an1 importante don. $hat can !e done throu1h the return of
course.
n private corporation, if it is a forei1n corporation, summons may !e served to the a1ent
of the corporation or the 1overnment entity char1ed with the said corporation or any
a1ent authoriEed !y the corporation.
6' s there any difference amon1 these three? Who is that )hilippine 1overnment officer
authoriEed to receive summons?
A' n cases of insurance corporation, summons may !e served to the insurance
commissioner or if it is a !an<, to the 1overnor of the %entral (an<. f the forei1n
corporation is authoriEed to do !usiness here in the )hilippines, then it is necessary that
he has an a1ent here, so you serve it to him. (ut 1oin1 !ac< under +ule 11, the period
to file a responsive pleadin1, if it is served upon the 1overnment officer, #0 days from
the receipt not !y the 1overnment officer !ut !y the corporate defendant. f it is served
upon the a1ent, 15 days lan1. f it is served upon the representative, it is also 15 days.
f it is a domestic private corporation, summons may !e served to the president, the
mana1in1 partner, 1eneral mana1er, corporate secretary, treasurer and the in/house
counsel. Note t"t t"is is e#c,usi&e under t"e Vi,,ros doctrine- Hou +etter
memoriIe t"t +ecuse t"e doctrine no! is it is e#c,usi&e$ t"e enumertion t"ere
is e#c,usi&e- &s held in the case of Mason vs %& which reiterated the 3illarosa
doctrine.
@etCs 1o !ac< to the modes !ecause another situation here is when the defendant is
outside the country. When the defendant is outside the country, normally what comes
into your mind is that service of summons must also !e made outside the country as
well. $hat is why you call it eBtraterritorial service of summons under section 15. Lou
30
connect that with section 1. and 1' !ecause they have the same mode when the
wherea!outs of the defendant is un<nown or when the defendant is temporarily outside
the country.
What is the case of 3almonte vs %&?
When you spea< of eBtraterritorial service under section 15, it does not follow that you
must always have to do it with pu!lication, 5oM
$he first mode of eBtraterritorial service is service on the person of the defendant. 0o
even if she is a residence of Washin1ton, they could have as< the sheriff !y 1ivin1 him a
round tic<et to Washin1ton, and serve the summons there. $hat is within the ran1e !ut
of course it is very impractical, youCll never do that !ecause the sheriff will not accept it
and as< for another tic<et for his wife.
$he second mode is throu1h su!stituted service !ut who will su!stitute for that? 5ow
your course is throu1h pu!lication.
6' (ut loo< at the Hany other mode that may !e authoriEe !y the courtI what is this? %an
you 1ive me an eBample of this?
A' $his is upon the discretion of the court !ut what are the instances of doin1 that?
$hrou1h the )hilippine Am!assy, throu1h the courier 7@(%, >edeB8, !ut it must always
!e !y leave of court, Lan an1 importante. 0ometimes when you as< the court for any
other mode, it will tell you Hsend it !y re1istered mailI.
6' 0o when you are as<ed can there !e summons !y re1istered mail?
A' 2rdinarily not !ut it can fall under any other mode directed !y the court as lon1 as
you present to the court the re1istry receipt. $hat would fall under any other mode
directed !y the court.
31
Decem+er ?>$ 5??>
7ummons is "o! t"e court c2uires 3urisdiction o&er t"e /erson o) t"e de)endnt-
6' :ow is summons served?
1. 0ervice on person of the defendant
Note' t is not called personal service anymore to distin1uish it from sec. ' pleadin1s
and jud1ment !ut rather it should !e called H0ervice in person of the defendantI. n
1*'. rule we call that Hpersonal serviceI !ut under the present rule it is now <nown
as Hservice in person of the defendantI. 0o if you say personal service it will !e
mar<ed wron1 !ecause there is no more personal service of summons, technically
spea<in1, !ecause the rule already calls it Hservice in person of the defendantI.
Note' $here is no service !y mail of summons, the rationale thereof is that the
completeness of the service would !e dou!tful and since summons is the way !y
which the court ac=uires jurisdiction of the person of the defendant hence jurisdiction
may not !e ac=uired, and there is always a =uestion.
2. 0u!stituted service
6' s there a su!stituted service of pleadin1s? :ow do you distin1uish su!stituted
service of summons with su!stituted service of pleadin1s?
A' Les. 0u!stituted service of pleadin1s and other processes is to the cler< of court.
$hat su!stituted service is at the place of residence or at the place of !usiness or
office.
6' n the office, who should received it?
A' $he person who is in char1e thereof.
6' n the residence?
A' &ny person who is a resident thereof and of sufficient a1e and discretion.
6' May a minor receive summons?
A' t depends, !ecause what is re=uired is a person who is of sufficient a1e and
discretion. $he a1e refers to one who has discretion. 0o even if he is a minor !ut he
has discretion he can still received summons. &1e here does not mean a1e of
majority. 9efinitely a child of 2 cannot receive it due to lac< of discretion !ut a
student of 15 years old may receive it !ecause he has discretion.
6' %an a janitor in the office receive it? Why?
5o, !ecause he is not in char1e of the office, such summons must !e served to a
person in char1e of the office.
6' %an a secretary receive it? Les, !ecause ordinarily secretaries are the ones in
char1e in the office and there are a lot of jurisprudence that tells us that receipt of
secretary of summons is a valid service.
#. )u!lication
When one whose wherea!outs are un<nown 7sec 1.8 or where one is temporarily
outside the country 7sec 1'8 summons !y pu!lican may !e done. (ut in the case of
Mason vs. %&, you have to consider the <ind of action in order to avail that mode of
service availa!le, so that service of summons !y pu!lication is not allowed in action
strictly in personam. A1. &ction for specific performance, dama1es, claims etc.
32
6' f Mr. & married to Ms. ( who is a nurse in 0audi &ra!ia and Mr. & has filed an
action for annulment of their marria1e, how can summons !e served? A' 0ummons
!y pu!lication may !e done on the 1round that annulment of marria1e is a personal
action !ut not an action in personam. $he su!ject matter of an annulment case is the
status of a party from that !ein1 married wantin1 to revert !ac< to sin1lehood. 0tatus
as su!ject matter is not strictly in personam, service of summons may !e done !y
pu!lication and to1ether with furnishin1 a copy of the summons and complaint in the
last <nown address which is the address in fact of the plaintiff.
.. ABtraterritorial 0ervice
Note' $he mode of eBtraterritorial service is also !y way of pu!lication.
6' $here are # ways of eBtraterritorial service of summons.
a. 0ervice in person of the defendant
!. )u!lication to1ether with the sendin1 of the copy of the summons and the
complaint at the last <nown address of the defendant
c. any other mode as directed !y the court
Note' $here is no service of summons !y re1istered mail. f the court order that it
must !e mailed to the )hilippine em!assy where the defendant may !e residin1J
that falls under sec 1'.
6' What if the court ordered that summons !e served !y re1istered mail, shall it !e
valid?
A' Les it is valid !ut not !ecause re1istered mail is allowed !ut !ecause it is a mode
of service ordered !y the court. 2r if the court deems it proper to order the sheriff to
send the sheriff there, !ut that would !e already service of person of the defendant.
Note' ;nder eBtraterritorial service there is no su!stituted service under sec 15
6' Where is service of summons deemed completed?
A' 0ervice on person of the defendant and su!stituted service is completed upon actual
receipt. 5ote that in su!stituted service it is not the defendant who received it, it may
only !y representation !ut actual receipt of the representatives completes the service. f
the service is !y pu!lication, it is deemed completed upon the completion of the
pu!lication.
6' :ow is the completion of the service of summons !y pu!lication proved? A'
%ompletion thereof may !e proven !y affidavits of any person involved in the pu!lication
of said summons, e1 the editor, circulation mana1er, pu!lisher etc. any affidavit of said
person will esta!lish proof of service of summons.
6' Who are the persons or different <ind of defendants to whom summons must !e
served?
A' t must !e served to the prisoner throu1h the warden. t must !e served to a minor,
incompetent and its parent or 1uardian. t must !e served to an insane and parent or
1uardian.
When we 1o to another defendant, an artificial !ein1, a corporation, we divide it into 2,
which can !e a forei1n corporation or domestic corporation. $he rule now is =uite strict
to a defendant of a private domestic corporation. %ases of (aliwa1 transit which you
have studied, of )alsa< enterprises, those of )hil oil, of Medialay vs >ernando no lon1er
apply. $hey were all overturned !y the strict provision of the rule.
33
6' $hese defendant corporations, private domestic corporation are re=uired to !e
served only throu1h specific individuals who are these persons?
A' 0ervice may !e made on the president, mana1in1 partner, 1eneral mana1er,
corporate secretary, treasurer, or in/house counsel. n the old rules summons may !e
made on the cashier and a1ent, !ut in the present rules they are not included anymore.
6' What is the 3illarosa doctrine?
NOTE' +emem!er that there is no prohi!ition re1ardin1 su!stituted service when
defendants are pu!lic corporation in other words su!stituted service is not disallowed,
meanin1 it can !e availed of. :owever there is an eBact jurisprudence in the matter so
indirectly we can apply the doctrine laid down in Mason vs %& as well as 4ose vs (oyo.
6' Where it was esta!lished that in order that the service of summons !e considered
valid the followin1 must concurF
A'
1. that it must !e actually received"
2. that the person who received it must !e duly authoriEed"
#. and that there must !e evidence to the effect of 1 and 2"
.. !ut most importantly you must esta!lish the relationship of the person who received
it with the corporation.
0omehow, this relaBes the doctrine under 3illarosa, !ecause the doctrine in 3illarosa if
we strictly implement it, all the corporations could never !e sued.
6' f you sue 0M% and summons would !e served to the ' as enumerated under 0ec
11, will you ever find them?
A' (efore you reach anyone of them you have to pass throu1h several rooms, throu1h
several personalities just to serve the summons. 5oteF su!stituted service is not
prohi!ited althou1h there is no clear cut jurisprudence on the su!ject matter, as of now
there is none.
6' $o whom was the summons served in the 3illarosa? n Millenium vs $an to whom
was it served?
NOTE' +emem!er that if a corporation is the plaintiff, the address of the corporation
should not !e the !ranch office, it must always !e the principal office. $hat is why
MA+&@%2 for eBample, there are several offices throu1h out the country, that if you
want to send summons upon MA+&@%2 you have to serve it in the principal office and
not in any of its !ranches. (e sure that the defendant is properly identified !ranch
mana1er so that you can served it properly.
$he other mode in which the court ac=uire jurisdiction over the person of the defendant
is throu1h VOLUNTARH A44EARANCE-
6' When is a defendant deemed to have voluntarily su!mitted to the jurisdiction of the
court?
A' When the defendant files a pleadin1 other than a motion to dismiss.
6' s filin1 a motion cannot !e construed that the defendant voluntary su!mitted to the
jurisdiction of the court? rrespective of the 1round for the motion to dismiss?
A' When the defendant as<s for affirmative relief from the court he is considered to
voluntarily su!mitted to the jurisdiction of the court hence there is voluntary appearance.
34
t started in the case of Medialey vs >ernando when a defendant file a motion to dismiss
on the 1round of lac< of jurisdiction he is not considered to have su!mitted himself to
the jurisdiction of the court !ut if over and a!ove the 1round of lac< of jurisdiction he
avails of other 1rounds for a motion to dismiss then he is considered to have su!mitted
himself to the jurisdiction of the court.
$his jurisprudence is no lon1er correct !ecause in the doctrine of the @a 5aval case
states that if a defendant files a motion to dismiss on the 1round of lac< of jurisdiction
and other 1rounds he is not considered that he has su!mitted himself to the jurisdiction
of the court.
&nd the latest case on the matter is that of Millenium ndustrial vs $an which says that in
order for the court to ac=uire jurisdiction over the person of the defendant !y voluntary
appearance, there must !e an Hune=uivocal su!missionI 7and intentional su!mission8 of
himself to the jurisdiction of the court. 0o if it is e=uivocal then the court does not
ac=uire jurisdiction.
$hese somehow modified the old doctrine which says that when a defendant secures or
as< for affirmative relief he su!mit himself to the jurisdiction of the court. $hat doctrine
was modified !y Millenium vs $an. (ecause even if you see< affirmative relief !ut you
do not cate1orically su!mit yourself to the jurisdiction of the court. $his seems
contradictory, Why? (ecause if you are see<in1 affirmative relief from the court you
want to the court to 1ive you relief !ut at the same time you are =uestionin1 the
jurisdiction of the court to 1ive you relief.
NOTE' ;nder the 1rounds enunciated in 0ec 1 +ule 1', that cannot happen !ut
remem!er that under said 1rounds are not eBclusive, there are other 1rounds for motion
to dismiss. n fact in sect 1 the filin1 of motion to dismiss is !efore filin1 an answer !ut it
does not follow that after answer you can no lon1er file a motion to dismiss. Lou can still
file a motion to dismiss on other 1rounds.
6' Where can you find that? +ule 1, sec # on dismissal of action those are other
1roundsF
A' f, for no justifia!le cause, the plaintiff fails to appear on the date of presentation of
his evidence in chief on the complaint, or to prosecute his action for an unreasona!le
len1th of time, or to comply with these +ules or any order of the court, the complaint
may !e dismissed upon motion of the defendant or upon the courtCs own motion, without
prejudice to the ri1ht of the defendant to prosecute his counterclaim in the same or in a
separate action. $his dismissal shall have the effect of adjudication upon the merits,
unless otherwise declared !y the court.
n these cases you can file a motion to dismiss even after an answer has !een filed
even durin1 the hearin1 of the case.
6' f a defendant files a motion for eBtension of time to file an answer, is that voluntary
appearance?
A' When a defendant files a motion for eBtension of time to file an answer, he is
deemed to have su!mitted himself to the jurisdiction of the court. &s if he has already
filed an answer, !ecause filin1 an answer is voluntary appearance. Aven if defendant
has not recieved the summons !ut he filed an answer to the complaint, he su!mits
himself already to the jurisdiction of the court under 0ec 20 of rule 1.. and it has !een
construed when the defendant instead of filin1 an answer files a motion for eBtension of
time to answer he has deemed to file an answer under the doctrine that he voluntary
35
su!mitted himself to the jurisdiction of the court !ut not when he files a motion to
dismiss even if his motion to dismiss is 1rounded on other 1rounds other than lac< of
jurisdiction. With more reason therefore, that if a defendant files a motion to dismiss on
the 1round of lac< of jurisdiction the court does not ac=uire jurisdiction over the person.
$hat is not voluntary appearance.
6' s a motion the same as a pleadin1?
A' 0ec 1 +ule 15 a motion is an application for relief other than a pleadin1. Meanin1 a
motion is different from a pleadin1. t is not a pleadin1 technically spea<in1.
6' & and ( parties to a case, upon receipt of summons !y (, instead of filin1 an answer
he files a motion to dismiss, is he deemed to have voluntarily su!mitted himself to the
jurisdiction of the court?
6' We said that motion is not a pleadin1 !ecause in a motion we always as< for relief.
Motions are of 2 <inds they are?
A' @iti1ated and non/liti1ated motions.
1. & liti1ated motion is one which re=uires a hearin1 while a non/liti1ated motion is one
which does not re=uire a hearin1.
2. 5on/liti1ated motions does not re=uire a hearin1 !ecause they are not prejudicial to
other parties. A1 motion for continuance, motion for postponement althou1h under a
circular of the 0% a motion for postponement may not !e liti1ated !ut you have to
pay )100 for the postponement. @iti1ated motions re=uire hearin1 !ecause they
prejudice other parties. A1 motion for reconsideration
NOTE' When we tal< a!out liti1ated motions it does not automatically follow that the
court will set it for actual hearin1 li<e presentation of evidence, it merely means that the
other party is 1iven the opportunity to answer, respond, comment.
NOTE' 0ec ., 5 and ' are mandatory under +ule 15. every motion must !e set for
hearin1, notice of hearin1 shall !e served upon all parties concerned, and proof of
service must !e presented otherwise lac< of any shall ma<e the motion a mere scrap of
paper. 5ote that it must also comply with sec 2 that is must !e in writin1 !ecause it is a
liti1ated motion.
6' What is the proof of service in motions?
A' +ule 1#, it depends upon how you served it.
1. f you served it personally, in actual receipt the si1nature of the recipient.
2. f served !y re1istered mail, the re1istry receipt.
#. f served !y ordinary mail in the a!sence of re1istered mail then 10 days from the
deposit to the post office.
6' What is the time frame for hearin1 and notice?
A' 5otice must !e 1iven # days !efore actual hearin1 and hearin1 must !e set within 10
days from filin1 of the motion.
0uppose you file it in dec 5, hearin1 shall !e set not later than dec 15 eBcept if the
service is !y re1istered mail !ecause in re1istered mail chances are that it would not !e
received !y the party in that period. 0o it would !e a case to case !asis, that is a very
1eneral rule that is su!ject to a lot of eBceptions the 10 day period. (ut not the # day
notice rule, that is not su!ject to eBception that is differentiated from the 10 day settin1
rule.
36
6' What is the # day notice rule?
A' $he # day notice rule re=uires that # days prior to the set hearin1 the notice should
have !een received !y parties. $he # days notice rule is not a!out the notice !ut it is
a!out the receipt of notice !y the adverse party.
$herefore, the # days notice rule re=uires that the notice must !e received !y the
adverse party at least # days !efore the scheduled hearin1. $hat would show you that
the 10 day settin1 rule is not mandatory. (ecause cannot !e complied with if service
was done throu1h re1istered mail. 5ote the # day notice rule is notice made !y the
movant, the court does not notify anymore. t is the movant that sets the date for
hearin1 and the party must have received it # days !efore the scheduled hearin1.
6' 2ral motions are they liti1ated or non/liti1ated?
A' 5on/liti1ated
6' What is the omni!us motion rule?
A' 0ec - +ule 15 a motion attac<in1 a pleadin1, order, jud1ment or proceedin1 shall
include all o!jections then availa!le, and all o!jections not so included shall !e deemed
waived su!ject to the provisions of rule * sec 1.
6' ABceptions to the 2mni!us Motion rule?
A'
1. %ourt has no jurisdiction over the su!ject matter"
2. $hat there is an action pendin1 !etween the same parties for the same cause" or
#. $hat the action is !arred !y a prior jud1ment or !y the statute of limitations.
6' $o whom do you address the notice of the hearin1?
A' $o the cler< of court, however the rules says that the notice is not to the cler< of
court, it must !e to the adverse party who ever the counsel of the plaintiff. (ut
jurisprudence however !ecause it is the plaintiff who sets it in the calendar for hearin1
whether to approve it or not, the 0% in many line of cases has decided that that <ind of
notification 7addressed to cler< of court8 is su!stantial compliance provided that you
state copy furnished to counsel of the plaintiff !y re1istered mail pursuant to sec 11 of
rule 1# !ecause of distance.
NoteF $he priority of service is personal service and if !y re1istered mail eBplain why
you are sendin1 it !y re1istered mail and not personal service.
Ru,e 1>
6' What are the 1rounds for a motion to dismiss?
A' +ule 1' 0ec 1. Within the time for !ut !efore filin1 the answer to the complaint or
pleadin1 assertin1 a claim, a motion to dismiss may !e made on any of the followin1
1roundsF
a. that the court has no jurisdiction over the person of the defendin1 party
!. that the court has no jurisdiction over the su!ject matter of the claim
c. that venue was improperly laid
d. that the plaintiff has no le1al capacity to sue
e. that there is another action pendin1 !etween that same parties for the same cause
f. that the cause of the action is !arred !y a prior jud1ment or !y the statute of
limitations
1. that the pleadin1 assertin1 the claim states no cause of action
h. that the claim or demand set forth in the plaintiffCs pleadin1 has !een paid, waived,
a!andoned, or otherwise eBtin1uished
37
i. that the claim on which the action is founded is unenforcea!le under the provisions
of the statute of frauds
j. that a condition precedent for filin1 the claim has not !een complied with
6' What is the statute of frauds?
6' What are these condition precedent?
A'
1. 5on compliance of !aran1ay conciliation proceedin1s" and
2. When the action is !etween relatives and no earnest effort for amica!le settlement
has !een availed of.
;nder the !aran1ay conciliation proceedin1 which used to under )9150- which was
later repealed !ut it still applies this !aran1ay conciliation proceedin1 !ecause the
provisions has !een 1ranted to the local 1overnment code. t is re=uired that !efore any
action is filed with the court it must first pass throu1h the !aran1ay conciliation
proceedin1s.
6' What are the ' eBceptions?
a. an action wherein 1 of the parties is a 1overnment instrumentality
!. when a pu!lic officer is involved and the action involved his pu!lic office
c. where one of the parties is a corporation
d. f the parties resides in different cities or municipalities eBcept when they voluntarily
su!mit themselves in the proper forum and the !aran1ay in which they reside is
adjacent to each other. 0o even if the parties reside in different cities or
municipalities !ut they reside in a !aran1ay who is adjacent to each other there is
still a need for !aran1ay conciliation.
e. When the action avails any of the provisional remedies
NOTE' 0o the 1eneral rule !efore an action !e admissi!le in court is that there must !e
a certificate to file an action from the !aran1ay attestin1 to the fact that it has passed
throu1h the !aran1ay conciliation proceedin1s and that there was no settlement in such
proceedin1.
$he 2
nd
condition precedent is where an action involves mem!er of the same family and
not earnest effort for amica!le settlement were availed of.
6' Who are mem!ers of the same family? :ow a!out the in/laws?
A' 2nly family mem!ers of ascendants, descendants and collateral relatives up to the
2
nd
de1ree 7!rothers and sisters8. n/laws are not included in family relations.
+elationship !y affinity are not included. 5ote that this is irrespective of where they
reside, there must still !e earnest effort for amica!le settlement.
NOTE' 9ismissal of action on the 1round of condition precedent for filin1 has not !een
complied with is without prejudice which means an action re1ardin1 the same action
may !e filed a1ain.
NOTE' +emem!er that prior to the case of A!el vs &min 7?8 !aran1ay conciliation
proceedin1s was jurisdictional !ut !ecause of the case JJ. $he !aran1ay re=uirement
for conciliation, the a!sence of which is no lon1er jurisdictional. Which means that
!ecause it is not anymore a matter of jurisdiction, if you donCt contest it you are
considered to have waived it.
38
6' $hen on what is it 1rounded?
A' t is 1rounded on what is called prematurity. (ecause of the fact that it is premature
the courts now does not dismiss the case !ut only suspends the proceedin1 su!ject to
compliance with the !aran1ay conciliation.
NOTE' $here is a provision in +ule 1, re1ardin1 unlawful detainer and forci!le entry,
sec 12 thereof, where it specifically state that it would !e premature to file an unlawful
detainer or forci!le entry case without complyin1 with the condition precedent. &lthou1h
it says su!ject to any the same, the eBceptions that weCve enumerated if that is present
then there is no need for !aran1ay conciliation.
5ow venue improperly laid as the .
th
1round. Venue is ,so not 3urisdiction,$ it is only
jurisdictional in criminal cases !ut in civil cases it is not jurisdictional. $hat is why when
you loo< at a motion to =uash under criminal procedure venue is a 1round !ecause
venue is jurisdictional.
Venue is ,so !i&+,e, a ni1ht !efore the 1**, rules, if you want to invo<e venue as a
1round for motion to dismiss, you have to file a motion to dismiss in invo<in1 it, now no
lon1er even if you do not file a motion to dismiss on the 1round of improper venue you
are not !arred from invo<in1 improper venue as an affirmative defense in your answer.
4ose vs (oyon there was no valid service of summons
4urisdiction !y su!ject matter conferred !y law specifically !y the constitution, ()12*,
and +&,'*1.
6' What are the re=uirements of litis pendencia? What are the re=uirements of litis
pendencia as 1round for motion to dismiss?
a. identity of parties
!. identity of su!ject matter
c. identity of cause of action
$he term same parties here identical parties. 0ame parties in litis pendencia and res
judicata does not refer to identical parties, it only refers to identity of interest.
6' f the case is !etween & and ( jud1ment rendered in favor of & over a property
supposin1 it is an action pu!liciana re1ardin1 property & was the plaintiff ( the
defendant. # or . years after the son of & who is N filed a case a1ainst the son of ( who
is L. the case now is not !etween & and ( !ut !etween N and L. can you as< for motion
to dismiss on res judicata?
A' Les. +emem!er it is not identity, similarity of parties does not mean identical parties
!ut identical su!ject matter, identical cause of action, and identical interest. (ut ta<e
note of the re=uirement of identity of su!ject matter, it is strict identity of su!ject matter.
0o that if & and ( =uarreled over a parcel of land located in Ma<ati under an action
pu!liciana case and then & and ( over the same =uarreled over the property located in
ce!u under the same cause of action which is action pu!liciana there is no res judicata
or litis pendencia. f that is !arred !y prior jud1ment or estoppel !ut not under each
other term which is conclusiveness of jud1ment !ecause res judicata is of 2 forms, the
first one is estoppel or !ar !y prior jud1ment, this is the strict <ind of res judicata. $he
other one is conclusiveness of jud1ment, where do you find that? 0ec ., +ule #*
distinction !y res judicata !ar !y prior jud1ment as distin1uished from conclusiveness of
jud1ment.
39
f a party moved for the dismissal of the case throu1h litis pendencia it is presumed that
there is more than 1 action pendin1 !etween the parties.
6' Which action should !e dismissed? $he 1
st
or the 2
nd
?
A' t depends upon the movant. :e can as<ed for the dismissal of either case. &ny case
may !e prayed for the dismissal !y the party.
@ac< of cause of action is a misnomer !ecause as discussed !efore cause of action is
the lac< or omission. $his should !e lac< of ri1ht of action. $his should not !e confused
with insufficiency of cause of action. (ecause there are some !oo<s which says that
insufficiency of cause of action is a 1round for motion to dismiss, that is wron1. t is lac<
of cause of action which is 1round for motion to dismiss.
6' Why is it so?
A' (ecause in insufficiency of cause of action there is a cause of action !ut there was
error only in the presentation. &nd !ecause there was only error in the presentation it is
su!ject to amendment. +emem!er that a motion to dismiss is not a responsive pleadin1
and therefore amendment is still a matter of ri1ht. (ut if it is a lac< of cause of action
then definitely there is no cause of action.
6' @ac< of cause of action should !e distin1uished from lac< of le1al personality to sue.
A' 2ne resides in the cause of action while the other resides with the person. &
corporation eBample who sues without the proper !oard resolution that is lac< of le1al
personality to sue. & minor who sues without the assistance of parent or 1uardian or
1uardian ad litem it is suin1 without le1al personality to sue. n lac< of le1al personality it
lies in the person, it is inherent with the person while the lac< of cause of action is
inherent in the ri1ht of the person.
6' What are the re=uirements of res judicata?
A'
1. there must !e a valid jud1ment must !e rendered !y a court of competent
jurisdiction
2. valid jud1ment must !e !ased on the merit of the case
#. that there is identity of parties, cause of action, and su!ject matter
6' What is jud1ment of the merits?
A' 4ud1ement !ased on the evidence presented to the court
6' s it necessary that there should !e a hearin1?
A' 4ud1ment of the merits does not re=uire a hearin1, it merely means that all the
parties were 1iven the opportunity to defend and to assert their claim. $hat is why a
jud1ment of a pleadin1 is a jud1ment on the merit, a jud1ment !y default is also a
jud1ment on the merit.
4ud1ment !y compromise is a jud1ment on the merit, a summary jud1ment under the
rules #2 ## #. are jud1ment on the merit even if there is no actual hearin1. &s lon1 as
the parties were 1iven the opportunity to defend and to assert their claim.
6' Which of these 1rounds are when such are used the dismissal is always with
prejudice?
A'
a. +es judicata"
!. $hat the claim or demand set forth in the plaintiffCs pleadin1 has !een paid, waived,
a!andoned, or otherwise eBtin1uished"
40
c. $hat the claim on which the action is founded is unenforcea!le under the provisions
of the statute of frauds
6' What are the statute of frauds? What are unenforcea!le o!li1ation? Anumerate
them.
;nder +ule 1' you file a motion to dismiss !efore an answer. Lou have to file an answer
after receipt of summons within 15 days if re1ular 10 days if summary.
6' What is the effect if the motion to dismiss is denied?
A' $hen you must file your answer within the !alance of the period.
6' 0ummons was received !y the defendant ( on dec 5, he has until dec 20 within
which to file an answer. 2n dec 1- he filed a motion to dismiss which was later denied,
when should he file his answer?
A' 5ote the denial was dec 1-, it is not receipt of such denial. &nswer should !e filed 5
days after the receipt of the denial. 5otice of denial could !e received on fe!raury. $he
rule says you have the !alance of the period !ut not less than 5 days from notice.
6' What notice is referred to there?
A' 5otice of the denial of the motion to dismiss. f receipt is >e! 5 then you have till >e!
10 to file an answer.
6' f the motion to dismiss is denied, can ( the movant appeal its denial? Why?
A' (ecause it is not appeala!le !ein1 an interlocutory order. :e must file his answer,
althou1h if there is a 1rave a!use of discretion he may file certiorari under rule '5. !ut
suppose it is 1ranted, thus favora!le to (.
6' What is the remedy of &?
A' Lou can appeal.
6' Why can you appeal an order 1rantin1 !ut you cannot appeal an order denyin1?
A' (ecause an order of 1rantin1 the motion to dismiss is deemed to !e a final order
hence it is appeala!le.
6' What is appeala!le?
A' 2nly final orders are appeala!le.
41
Decem+er =- 5??>
6' What are the remedies in case a motion to dismiss is denied?
A' $he remedies areF
1. >ilin1 of a motion for reconsideration"
2. >ilin1 a special action for certiorari under rule '5 in case of a!use of discretion
amountin1 to lac< of jurisdiction" and in the a!sence of such
#. >ile his answer to the complaint.
5ote appeal is not availa!le in the denial of a motion to dismiss !ecause it is an
interlocutory order.
6' f the motion to dismiss is 1ranted what is the remedy of the plaintiff?
A' :e may file an appeal.
6' Why does the rule allow the plaintiff to appeal !ut disallows the defendant to appeal?
A' (ecause an order denyin1 an appeal is merely an interlocutory order while an order
of 1rantin1 a motion to dismiss is already a final order or resolution.
NOTE' t must !e remem!ered that only final order or resolution may !e appealed. &nd
!ecause of the fact that there is no other remedy under the ordinary course of law from
the part of the plaintiff, that is why the rule 1ives him the ri1ht to appeal.
NOTE' +emem!er that the enumeration stated under sec 1 of rule 1' is EKCLU7IVE.
$here are no other 1rounds of a motion to dismiss under +ule 1'. n other words there
are other 1rounds for dismissal of actions under other rules !ut not under rule 1'
!ecause as it is so provided this motion to dismiss under rule 1' can only !e availed of
(EGORE answer is filed. &fter that you can no lon1er avail unless for a very, very, very
meritorious reason. 4ust remem!er that you can no lon1er file a motion to dismiss under
sec 1 rule 1' &>$A+ you have filed an answer.
6' :ow a!out the omni!us motion rule where in the eBemption is jurisdiction?
A' t is a 1round availa!le at any time, even durin1 certiorari or on appealJ that is
eBceptional, very eBtraordinary. &lthou1h there is an eBception to the eBceptionJ
unless you are estopped. ?uerero v %& 7?8
6' May a court not resolve a motion to dismiss and order the same to !e resolved
to1ether with the case?
A' 5o, !ecause sec # rule 1' the court shall not defer the resolution of the motion for
the reason that the 1round relied upon is not indu!ita!le.
6' What is the rationale of the rule of such non deferment of resolution of a motion to
dismiss?
A' $o prevent delay, if the court has no jurisdiction then it would only !e waste of time
for the court to continue.
5ow if the court has no jurisdiction why would the court rule on somethin1 it has no
authority? t is not even residual jurisdiction. t is a waste of time, money and effort for
the court in deferrin1 the resolution of the motion on the 1round of lac< of jurisdiction.
&fter all, if he renders any jud1ment without jurisdiction then the jud1ment is totally and
a!solutely null and void.
42
Ru,e 1=
DI7MI77AL OG ACTION7
0ections 1 and 2 are dismissal of actions !y the plaintiff.
6' Why would the plaintiff who was in the first place cause the action would cause the
dismissal of the action?
A' t should !e emphasiEed that in rule 1, there is no 1rounds stated, in all others they
all spea< of 1rounds. $he rule does not state any 1rounds for the plaintiff to as< the
dismissal of the case !ecause it would always !e 1ood for the entire society as a whole
if there are less cases. &nd there are one to a million 1rounds that a plaintiff may use to
dismiss a case. :e may even state that he was wron1 in filin1 the case.

6' f & files an action a1ainst ( in +$% Ma<ati, claimin1 )250< and !efore summons
has !een serve to him, he realiEed that the trial court has no jurisdiction over the su!ject
matter, so he filed a notice 7sec 18 of the dismissal of action. &nd it was dismissed and
he a1ain filed the case for a sum of money a1ainst the defendant this time for )500<
!efore the +$% !ecause some o!li1ations has matured. &nd in the end !efore
summons has !een served he found out that the defendant (, is the !est friend of his
former 1irlfriend, who as<ed him to drop the case. :e could not refuse !ecause several
years a1o, she also does not refuseJ.. and a1ain & filed a notice for the dismissal of
the case. $hen later on he found out that ( was courtin1 his former 1irlfriend. %an he
a1ain filed a #
rd
case a1ainst (? A' :e can still file, the 2 dismissal rule will not apply if
any dismissal is due to lac< of jurisdiction over the su!ject matter. $he 1
st
notice of
dismissal is due to lac< of jurisdiction over the su!ject matter that therefore will deprive
the adverse party to =uestion the 2 dismissal rule. $he 2 dismissal rule will apply only to
causes other than jurisdictional.
6' When & files a notice of dismissal, when will the dismissal ta<e effect?
A' t will ta<e effect upon issuance of the order of the court confirmin1 the dismissal of
the case.
NOTE' $hat order of the court is mandatory without which the dismissal does not ta<e
effect. ;nli<e the rules prior to the 1**, rules, there was no need for the order of
confirmation !ut under the present rules, the order of confirmation is necessary to effect
the notice of dismissal. 5otwithstandin1 the fact that there was no one who was
prejudiced here.
9onCt !e confused here in what we studied a!out amendments, it is a matter of ri1ht
which is a!out also the same period !efore answer has !een served. 0o even if answer
is filed if it has not !een served still the notice is applica!le.
7ection 5 is no lon1er !y notice !ut !y motion !y the plaintiff. (ut this time answer is
already !een filed and served to the plaintiff.
6' 0o that if the answer contained a counter claim what is the effect if the motion to
dismiss filed !y the plaintiff is 1ranted?
A' $he motion to dismiss merely affects the claim of the plaintiff and not the counter
claim of the defendant.
6' What <ind of counter claim is that?
A' $he rules apply whether compulsory or permissive counter claim
43
6' What is the nature of a compulsory counterclaim as distin1uished to that of a
permissive counterclaim?
A' & compulsory counterclaim is one which arises from the same transaction or series
of transaction as that of the claim. While a permissive counterclaim is one which does
not arises from the same transaction or series of transaction as that of the claim
6' 0o can there !e a compulsory counterclaim without a claim?
A' 5o, a compulsory counterclaim only eBists !ecause a claim eBists.
6' 0o if you remove the claim, on what le1al footin1 will the compulsory counterclaim
stand? 0o why do you say that in spite of the dismissal of the complaint, a compulsory
counterclaim still eBist and continues?
A' (ecause althou1h the plaintiff has caused for the dismissal of the ori1inal claim he
has already laid the 1round for the counterclaim. f the defendant filed a counterclaim
and plaintiff decides to withdraw his claim he has already laid the 1round for the
counterclaim of the defendant. (ut the le1al rule here under jurisprudence, !ecause it
has already caused prejudiced to the defendant that is why compulsory counterclaim
continues.
& file a case claimin1 1M, ( the defendant says H donCt owe you in fact you owe meMI (
filed counterclaim of #M, in the claim atty fees 100< in the counterclaim, atty fees #00G.
0uppose it is true, it has already caused prejudice to the defendant, the defendant
already paid his lawyer. :e can never 1o !ac< to his lawyer and say Hreturn to me the
#00G paid youI the lawyer would say H will return you my wife !ut not my #00GI
NOTE' t should !e emphasiEed that prejudice has !een caused here, that is why 0ec 2
does not distin1uished whether the counterclaim is compulsory or permissive. Whether
the counterclaim is compulsory or permissive, the dismissal !y a motion of the plaintiff is
limited only to the complaint.
6' 0o what happens to the counterclaim?
A' $he defendant has the option whether the counterclaim !e prosecuted in a separate
action or that it !e resolve in the same action !y 1ivin1 notice to the court within 15 days
!y a motion manifestin1 his preference to have his counterclaim resolved in the same
action.
7ec- D Dismiss, +% t"e De)endnt or +% t"e Court.
$hese are the only instances where the dismissal can !e done motu proprio. n all
cases of the dismissal we have studied it must !e !y motion or notice !ut here it can !e
done motu proprio.
6' What are these instances?
A'
1. f, for no justifia!le cause, the plaintiff fails to appear on the date of the presentation
of his evidence in chief on the complaint" or
2. >ailure to prosecute his action for an unreasona!le len1th of time" or
#. >ailure to comply with the +ules or any order of the court
.. f an action is 1overned !y summary procedure the court can dismiss an action motu
proprio, even without any motion.
6' f there is a motion filed?
A' ?ood, it would !e much !etter, it does not prohi!it a motion to 1ive effect.
44
6' :ow unreasona!le is unreasona!le len1th of time?
A' $he unreasona!le len1th of time depends upon the discretion of the court, there is
no hard and fast rule. t depends upon the circumstance surroundin1 the case.
9o not !e mislead !y the word evidence in chief, evidence in chief is not only on the
part of the plaintiff, there is also evidence in chief on the part of the defendant.
NOTE' 0ec # also applies as counterclaim, crossclaim or any other complaint even
intervention.
$here are # 1rounds there, !ut let me add another under the rules on summary
procedure, if an action is 1overned !y summary procedure the court can dismiss an
action motu proprio, even without any motion.
Ru,e 1E
4RE TRIAL::AMENDED 4RETRIAL
$he term preliminary conference is not limited now in actions 1overned !y summary
procedure !ecause in the amended +ule 1-, they are now usin1 the term preliminary
conference. 5ow there are preliminary conferences in !oth actions 1overned !y
summary procedure and !y the rules 1overned !y re1ular procedure.
6' s there pretrial in criminal proceedin1s?
A' Les, +ule 11-. (oth in civil and criminal cases, pretrial is mandatory. ;nli<e !efore it
was mandatory only in civil cases !ut not criminal cases. ;nder the present rule pretrial
is mandatory in !oth civil and criminal cases.
7ection 1
&fter the last pleadin1 has !een served and filed, it shall !e the duty of the plaintiff to
promptly move eB parte that the case !e set for pretrial. :ence it is no lon1er the duty of
the court !ut the duty of the plaintiff after the last pleadin1 has !een filed which is a
reply, if reply is necessary. f no reply is file the plaintiff now can file a manifestation and
motion to set the case for pretrial copy furnished of course.
$his motion is not liti1ated !ecause there is no prejudice to the other party, li<e motion
of postponement !ut it is still necessary to furnish a copy of your pleadin1Dmotion to the
adverse party.
6' What is the purpose of pretrial?
A' ;nder section 2F
a. the possi!ility of an amica!le settlement or of a su!mission to alternative modes of
dispute resolution
!. the simplification of the issues
c. the necessity or desira!ility of amendments to the pleadin1s
d. the possi!ility of o!tainin1 stipulations or admissions of facts and of documents to
avoid necessary proof
e. the limitation of num!er of witnesses
f. the advisa!ility of a preliminary reference of issues to the commissioner
1. the propriety of renderin1 jud1ment on the pleadin1s, or summary jud1ments, or of
dismissin1 the action should a valid 1round therefore !e found to eBist
h. the advisa!ility or necessity of suspendin1 the proceedin1
i. such other matters as may aid in the prompt disposition of the action
45
6' What is the o!jective of pretrial?
A' $he purpose is to eBpedite the proceedin1.
f the plaintiff does not file a motion for pretrial it is incum!ent upon the court to set it for
pretrial. 0o the plaintiff is now 1iven the preference here as to when to set it. (ut now
you donCt immediately hold the pretrial !ut rather you have what you call mediation and
conciliation proceedin1. $his is the main amendment to the pretrial rule. Lou already
went to the !aran1ay, then to the court, the court will still refer you to a pseudo
!aran1ay, call it /seudo +rng% !ecause the conciliators and mediators are not
lawyers, some of them are retired court personnel. (ut it is not necessary that they have
le1al !ac<1round !ecause the o!jective here is to help the parties meet and come out
with a settlement. 0till the o!jective is to eBpedite the proceedin1s and to avoid trial in
court and in effect it would declo1 the doc<ets of the court.
6' f there is no settlement what will happen?
A' $hey will return to the court, they have the maBimum of #0 days to arrived at an
amica!le settlement. $his #0 day period is eBtenda!le to another #0 days and if there is
still no settlement the conciliator will refer the case !ac< to court. 2nce you 1o to court
you proceed to preliminary conference, !efore the !ranch cler< of court. &nd what
happens in sec 2 of rule 1- that is now the procedure in the !ranch cler< of courtJ
mar<in1 of evidence, simplification of issues, stipulations and admission, namin1 of
witnesses, a1ree on judicial affidavit etcJ !ut !efore the cler< of court do that, he would
still try to arrived at a settlement.
6' What is the meanin1 of judicial affidavit !a1o yan la pa sa rules?
A' 4udicial affidavit is that the parties do a1ree to have testimonies throu1h judicial
affidavit then su!mission of affidavits will suffice to constitute the direct testimonies of
witnesses su!ject to cross eBamination.
NOTE' +emem!er that those which have not !een mar<ed in the preliminary
conference as a 1eneral rule shall not !e admitted and those which has not !een
named as witnesses for the parties could not testify. &fter these the !ranch cler< of court
will set a date for pretrial proper.
9urin1 pretrial proper, court would a1ain try if settlement can !e made. f no settlement,
records in the preliminary conference shall !e the !asis of the pretrial order. $he pretrial
order is mandatory that it can !e a 1round of new trial on the !asis of irre1ularity, if the
court proceeded without a pretrial order. n the pretrial order it would state the issues,
the facts admitted, limitin1 the issuesJ <aya pa1datin1 n1 trial mai<sin1 mai<si na. !ut
despite of these umaa!ot pa rin n1 10 years an1 m1a trial.
6' ;nder rule 1- the parties are mandated to !e present, what are the effects if a party
is not present?
A' f the plaintiff is not present it is 1round for the dismissal of the case, this is not one of
the 1rounds in rule 1' neither amon1 the 1rounds under rule 1,. n rule 1- non
appearance of the plaintiff when so duly notified, in fact he was the one who set it for
pretrial, then he does not appear and he does not have any representative who has
0)& to settle a settlement then the defendant may move for the dismissal of the case. f
the defendant is a!sent, the plaintiff may move to !e allowed to present evidence eB
parte and on the !asis of which the court may render jud1ment.
NOTE' In t"e o,d ru,e it is ground )or t"e dec,rtion o) /rt% s in de)u,t-
Ng%on$ s !e !ere discussing ru,e 8$ WALA NC A7 IN DEGAULT ORDER-
46
4eo/,e & 4ereI
&dmissions in the pretrial are !indin1 !etween the parties
7guid doctrine
@ac< of counsel is not a persuasive 1round to set aside the order of as in default. t was
also ruled not to !elittle the pretrial !ecause it may ma<e or !rea< your case.
Ru,e 18
INTERVENTION
6' What is the rule in intervention?
6' What is the !asis of intervention?
A'
1. nterest over the su!ject matter of the liti1ation"
2. nterest in the plaintiffs cause"
#. nterest of the defendants cause or lac< of interest in !oth causes of that of the
plaintiff and the defendant.
6' :ow will you illustrate these three 7#8 situation? & filed a case a1ainst ( for recovery
of parcel of land, accion pu!liciana. N is intervenor, what may !e the 1
st
situation on the
part of N who intervened?
A' N is the possession of said land or he may !e a tenant or he may !e a mort1a1ee or
he may !e an attachin1 creditor. :avin1 interest on the su!ject matter.
6' What a!out the 2
nd
1round?
A' N is mort1a1or then he has an interest.
6' #
rd
instance?
A' :e could have !een adversely affected !y a distri!ution or disposition of the property.
N is the true owner of property then the adjudication of the property to & or to ( would
adversely affect his ri1ht.
6' f the intervenor is interested in the success of the plaintiff, what should he file?
A' %omplaint in intervention
6' f the interest of the intervenor is in the success of the defendant, what should he
file?
A' &nswer in intervention
6' f heCs interest is adverse to !oth plaintiff and defendant what should he file?
A' %omplaint in intervention
NOTE' +emem!er that in intervention, it can only !e filed !y leave of court. &nd under
the rules when you file a motion for leave of court you already attached your complaint
in intervention or answer in intervention. (ut you cannot immediately file your compliant
in intervention or answer in intervention you have 1
st
to file a motion for leave to admit
complaintDanswer in intervention and in your motion attached already the intervention.
$hen that would !e the !asis on 1rantin1 your motion.
6' f the motion is 1ranted !y the court what happens now? Who will !e the plaintiff and
defendants?
47
A' 9epends upon the interest of the intervenor, if he is interested in the cause of
plaintiff, he shall !e a co plaintiff and defendant is still defendant. f he is interested in
the cause of defendant, co defendant. (ut if his interest is adverse to !oth he is the
plaintiff and !oth of them are defendant.
NOTE' t must !e remem!ered that the intervenor is an outside party.
6' :ow can the court ac=uire jurisdiction over the person of the intervenor?
A' (y that very motion for leave you already su!mit yourself in the jurisdiction of the
court. $a<e note of the payment of doc<et fees. Gailan1an ito <asi you are an outsider
here. Lou have to pay the doc<et fee especially if you have a claim dependin1 to the
amount of your claim.
6' 0o the intervenor now files his intervention? When can he file this intervention?
A' &ny time !efore rendition of jud1ment.
NoteF t does not say !efore entry of jud1ment, !ut !efore RENDITION of jud1ment.
Ho &s 4ere,,o
6' +e=uirements of an intervention
A'
a. @e1al interest 7sec 1 rule 1*8"
!. Whether the adjudication of the ri1hts of the parties may !e delayed or prejudiced"
c. $hat the intervenors ri1ht cannot !e protected in a different proceedin1"
Note' n the delay aspect here even if it can !e proceeded upon or a1ainst a separate
proceedin1 !ut it would only delay the resolution of the issue then it is incum!ent upon
the court to admit the intervention. $his is what distin1uishes from the doctrine laid
down in the )inlac case.
Lou can only file an intervention in a case if it is still within the period allowed !y the
court !ut over and a!ove, you have to esta!lish your le1al interest in the intervention,
the three 7#8 re=uisites. &nd it would not cause delay.
6' What would have happened if 4ud1e )erello allowed the intervention of Lao?
A' t would delay the adjudication of the case. &nd the fact that the ri1ht invo<e !y Lao
is not a clear ri1ht, not distinct and =uestiona!le. n an intervention your ri1ht must !e
clear, distinct and !eyond =uestiona!le. &nd it can !e threshed out in another
proceedin1, Lao may file another action. t will not prejudice him if he files another
action.
4in,c &s CA
6' 0ervice of summons throu1h pu!lication allowed on the followin1 circumstancesF
A'
1. When the wherea!out of the defendant is un<nown"
2. When the defendant is temporarily outside the )hilippines and
#. n eBtraterritorial service.
:ere pu!lication was allowed !ecause there were several parties and !y leave of court
service !y pu!lication was made !ecause some of the parties whose wherea!outs are
un<nown.
9efective pu!lication !ecause pu!lished not in a newspaper of 1eneral pu!lication.
48
0% allowed intervention of the +) when it is a1ainst the rule !ecause filed when the
case was already in the %&. 0% allowed the intervention !ecause if not allowed it will
cause delay and if allowed it will not delay.
49
Jnur% ?9$ 5??=
0o you must have heard in %riminal )rocedure a!out the 0peedy $rial &ct, which only
slowed down the administration of justice !ecause it tended to eBpedite procedure that
it only slowed down.
Ru,e D? s/e<s o) tri,. n the practice of law, trial is the easiest part.
6' $here are # parts in the practice of lawF
A'
1. )reparation of the pleadin1s
2. $rial
#. ABecution
$he easiest part is trial !ecause you can always prepare. $he neBt is pleadin1, !ecause
you have to research. $he more difficult part is eBecution which is +ule #*. &nd even
academically spea<in1, itCs =uite difficult 7+ule #*8.
n trial, after all the pleadin1s have already !een accounted for, includin1 the pre/trial
order, the cler< of court now schedules trial. $here are instances in the +ules where
there is no more trial. (ut that doesnRt mean that parties are denied their day in court.
$here are jud1ments that do not pass throu1h trial and still these jud1ments may !e
considered to !e su!ject to res judicata. n summary jud1ments, there is no trial. n
jud1ment of the pleadin1s, there is actually no trial.
&nd the very 1ood eBample are actions 1overned !y the rules on summary procedure in
civil cases. n fact or in effect, trial is already prohi!ited. (ecause after su!mission of the
position papers, the rule provides that jud1ment !e rendered within #0 days from
su!mission of the case for jud1ment.
0o trial is necessary !ecause it provides the parties opportunities to present their side
!ut it does not necessarily follows that without it there is denial of due process.
5ow, trial may either last that short or that lon1. t all depends upon the nature of the
case. (ut as lon1 as possi!le, you will note that the +ules already tried to eBpedite the
proceedin1s !y tryin1 to cut short the trial period. 2ne of the new laws is the 0peedy
$rial &ct !ut it is not fully or truly implemented.
6' Lou will note that in +ule #0, that under the present rules there are only 2 1rounds
for postponement. What are the 2 1rounds for postponement of trial?
A'
1. )ostponement of trial on the 1round of a!sence of evidence.
2. )ostponement of trial on the 1round of illness.
+emem!er, these two are the only 1rounds for postponement.
6' What <ind of evidence?
A' 9ocumentary evidence, testimonial evidence, and real or o!ject evidence.
6' When +ule #0 spea<s of a!sence of evidence, what <ind of evidence does it refer
to?
A' +efers to any <ind of evidence, whether it is testimonial, documentary or real or
o!ject evidence.
50
6' :ow would you distin1uish that therefore from a!sence of a party or counsel? s that
not e=uivalent to a!sence of testimonial evidence, if the party is not availa!le to testify?
A' &!sence of party or counsel is only limited to illness. 0o that if a party or counsel is
a!road, that is the a!sence of evidence. What Rm tryin1 to drive at here is that the rule
is very strin1ent re1ardin1 now postponement, limitin1 the 1rounds. n fact these
limitations are the only limitations.
6' f you avail of illness as a 1round, what is re=uired?
A'
1. & motion statin1 the 1round relied upon must !e filed" and
2. $he motion must !e supported !y an affidavit or sworn certification showin1F
a. $he presence of such party or counsel at the trial is indispensa!le" and
!. $hat the character of his illness is such as to render his non/attendance
eBcusa!le.
6' Whose affidavit?
A' (y any!ody. n fact now, the practice in court is to have a medical certificate duly
notariEed. &lthou1h the court cannot a!solutely re=uire such certificate !ecause there
are conditions which do not re=uire medical attention.
E#m/,e'
@(M of lawyers. (ut if you say pneumonia, then it is time that you su!mit a medical
certificate.
6' :ow lon1 should the postponement !e?
A' 2ne month or three months in all. (ut that is not really followed, it is only in paper.
&lthou1h, academically you have to <now these thin1s.
&t trial, the rules also provide for the order of trial. $hat order of trial must !e
distin1uished from order of presentation of evidence under +ule 1#2.
6' What is the order of trial? 70ection 58
A'
1. )laintiffs shall adduce evidence in support of his complaint
2. 9efendants shall adduce evidence in support of his defense, counterclaim, cross/
claim and #rd party complaint"
#. #rd party defendant, if any, shall adduce evidence of his defense, counterclaim,
cross/claim and .th party complaint"
.. .th party, and so forth, if any, shall adduce evidence of the material facts pleaded !y
them.
6' Why does the rule do not provide for an intervenor?
A' (ecause the intervenor would present evidence after all the parties have presented
their evidence. (ecause the intervention can !e done anytime !efore rendition of
jud1ment. 0o he cannot !e provided for in the +ules !ecause you do not <now when
the intervention will come. $he intervention may !e after the presentation of the
evidence !y the prosecution, it can !e in the middle or after the prosecution has rested.
&s lon1 as the intervention has not 1et into the picture, the court cannot determine as to
when to present evidence.
51
6' 9istin1uish that from the order of the presentation of witness 7+ule 1#28.
A'
1. 9irect eBamination.
2. %ross eBamination.
#. +e/direct eBamination.
.. +e/cross eBamination.
6' $he court should receive evidence from the party. May the court or the jud1e
dele1ate reception of evidence?
A' Les. 2nly in 2 instances. 1. n defaults and 2. eB parte presentation which is ordered
!y the court throu1h a motion.
6' $o whom?
A' $o the cler< of court who must !e a mem!er of the !ar, which means a lawyer.
6' :ow should the trial !e conducted? What is the 1uideline in the conduct of the trial?
s there somethin1 to !e followed?
A' $he trial must !e conducted as to what is stated in the pre/trial order. )re/trial order
is mandatory so that if the court does not issue a pre/trial order, that can !e an
irre1ularity which is a 1round for new trial under criminal procedure and not civil
procedure. (ecause in civil procedure, new trial is limited to >&MA, newly discovered
evidence.
Ru,e D1 : Conso,idtion nd se&ernce
6' What is consolidation?
A' %onsolidation involves several actions havin1 a common =uestion of law or fact
which may !e jointly tried.
6' & files a case for specific performance a1ainst ( !efore the +$% Manila. %an there
!e consolidation?
A' 5one. (ecause there can only !e consolidation if there are more than one case.
6' %an there !e severance in the same eBample as a!ove?
A' Les.
6' What are the # forms of consolidatin1 cases?
A'
1. +ecastin1
2. %onsolidation proper
#. %om!ination of !oth recastin1 and consolidation proper
6' ?ive an eBample of a possi!le consolidation.
A' ABample 1iven, & files a case for collection of sum of money a1ainst ( !efore the
+$% Manila. & filed another case for specific performance arisin1 from a different
performance !efore the +$% Ma<ati.
6' :ow are you 1oin1 to consolidate those cases as cited a!ove? )aano !a an1 ma1/
consolidate? 9o you file an action for consolidation, motion or petition? )aano !a
1ina1awa?
A' :indi !a an1 caption n1 <aso ay +epu!lic of the )hilippines, +$% (ranch #5 Ma<ati
%ity. & plaintiff vs. ( defendant. %ivil case S so and so.
)a1 ni/recast mo yun, <asi 2 different <inds of action. When you 1rant consolidation, isa
na lan1 an1 caption. & vs. ( %ivil case S so and so. $hen & plaintiff vs. ( defendant %ivil
case S so and so. sa na lan1. 5i/recast mo. )arehon1 dramatis personae.
52
t doesnRt necessarily follow that you can only consolidate if & is the same plaintiff vs ( is
the same defendant. t can !e & vs ( or & vs N !ecause the rule says common =uestion
of facts or law. $he word Tsame partiesT there is not identical parties.
(ut how do you really consolidate in the eBample you have 1iven. %ollection for sum of
money in +$% Manila and 0pecific )erformance in +$% Ma<ati. Lou can file in either
court a M2$25 >2+ %2502@9&$25 on the !asis of 0ection 1 of +ule #1. t is
discretionary upon the court and it is not a matter of ri1ht. f the court finds that it will
facilitate the trial, if it will amount to savin1 time, money and effort, there are the same
evidence to !e presented the court can 1rant it. 2therwise if it is prejudicial to the case,
the court can deny it.
+emem!er, eto o< na ito <asi parehon1 5%+ an1 cases. Aven if one case is filed in
Manila and another is filed in (a1uio, still you can consolidate it. 2ne case filed in
@e1aspi %ity for vehicular accident and another filed !etween the same plaintiffs and
different defendants in PueEon %ity, consolidation is allowed.
6' (ut if the case is filed !efore the M$% and another case filed in +$%, consolidation is
52$ )200(@A. Why?
A' (ecause the issue is jurisdictional. 4urisdiction is conferred !y law and not !y the
a1reement of the parties.
(ut if it is just a matter of venue, consolidation is allowed !ecause venue can !e
su!jected to the a1reement of the parties. 7o t"t is recsting.
NOTE' n consolidation, if the Ma<ati court has 1ranted the consolidation, the Manila
court will !rin1 the records to the Ma<ati. 9ifferent pleadin1s !ut the same court which
tries the same. ;nli<e recastin1, nilala1ay mo na lan1 sa same pleadin1. %omplicated
cases, consolidation is not allowed !ecause it can !e prejudicial.
1. $here can !e no consolidation if the action is co1niEa!le !y different courts of
different jurisdictions neither can there !e severance.
2. $here can !e no consolidation if there is only one action. (ut if there are more than
one action, consolidation is possi!le. )rovided you can esta!lish common =uestion
of fact or law. +emem!er what we have studied in joinder of causes of action, it is
permissive.
3ery common case of consolidation is ejectment or unlawful detainer under +ule ,0.
6' :ere is &, & files a case a1ainst N, L, and O who are the tenants in # different
apartment units. $he contract !etween & and N is different from & and L and & and O.
%an you join causes of action?
A' 5o, !ecause these are different contracts. 0o you file different cases a1ainst them.
(ut once you have filed them, you as< for consolidation. (ut chances are it cannot !e
recasted !ut can only a simple consolidation. 2ri1inal co1niEa!le !y the M$%.
Wherever you file it, it will !e consolidated with the lowest num!er which was the first
case you filed.
6' What is severance? What are the re=uirements for severance? f the case is & vs. (
and there can !e no consolidation, can there !e severance?
A' Les, there can !e a severance. ;sual concept !y lawyers is that the opposite of
consolidation is severance. (ut it is not. n severance, there is only one action. n
consolidation, there must !e at least 2 cases.
53
6' :ow will severance apply in the eBample 1iven?
A' f there is a counterclaim filed !y ( a1ainst & and the court finds that it would !e
prejudicial to join the issues in one trial, then the court may allow a severance of action.
NOTE' $here can !e 52 consolidation !etween civil and criminal actions. $here is even
no consolidation in criminal cases.
6' Lou recall when we were studyin1 joinder of causes of action, & files a case a1ainst
( for sum of money in the amount of )100,000. &nother cause of action in the same
complaint for )200,000 and another for )#00,000. Where should we file it?
A' n the +$% !ecause of the totality rule. 0o there is only one complaint !ut there are #
causes of action <asi the o!li1ations incurred !y ( are different. 2ne was 4anuary, the
other is March and the other is &pril. 5ow, & can as< for severance. Meanin1 to say, he
as<s for separate trials as far as the o!li1ation of ( with re1ard to )100,000, with re1ard
to )200,000, and with re1ard to )#00,000. T"t is n e#m/,e o) se&ernce.
Or it can happen that ( files a #rd party complaint. san1 <aso pa lan1 ito, hindi pa
na1i1in1 2. 5ow, the #rd party defendant may as< for severance.
Or can there !e cross/claim. 0uppose if & files a case a1ainst ( and %, then ( files a
cross/claim a1ainst % then % files a counter cross/claim a1ainst (. % may as< for
severance of his counter cross/claim.
Remem+er t"t in se&ernce$ is ,ng ng <so- In conso,idtion$ t"ere must t
,est +e t!o-
Ru,e D> (se/rte 3udgments) contemplates this <ind of severance.
Ru,e D5 : TRIAL (H COMMI77IONER
6' :ow do you distin1uish this from trial with assessor?
A' $rial with assessor is not included in the present rules. $he distinction is that trial with
assessor is still trial !y the jud1e with the help of the assessors while in trial !y
commissioner it is trial, not !y the jud1e, !ut !y the commissioners.
6' What are the instances of trial !y commissioner? 70ection 28
A'
1. ABamination of a lon1 account"
2. $a<in1 of an account is necessary"
#. Puestion of fact, other than upon the pleadin1 arises" or
.. %arryin1 a jud1ment or order into effect.
NOTE' & commissioner refers to either a referee, auditor or any!ody appointed !y the
court. $he !est illustration of trial !y commissioner is found in +ule ', 7ABpropriation8
and +ule '* 7)artition8 !ecause the commissioner their is mandated !y the court.
6' :ow would you distin1uish the power of a commissioner from that of a deposition
officer?
A' & deposition officer cannot rule on the admissi!ility of the evidence while a
commissioner may !e allowed to rule on the admissi!ility of the evidence su!mitted. &
commissioner has the judicial power, practically that of a jud1e. t can even issue
su!poenas. t can rule on the o!jections. (ut not a deposition officer.
& commissioner, !efore ta<in1 his jo!, must ta<e an oath. $hat oath contains the powers
entrusted to him.
54
NOTE' would li<e you to 1ive emphasis to one section there re1ardin1 the 10/day
period notice. (ecause ordinarily the period in motion is # days, !ut there in the ORDER
OG REGERENCE it is 10 days.
6' 9istin1uish 2rder of +eference from 2rder of %onfirmation.
A' $he order of reference is the order 1ranted !y the court appointin1 a commissioner
to try a case while the order of confirmation which we studied under +ule 1, is the order
confirmin1 the notice of dismissal. $here is an order of confirmation under +ule '-
7>oreclosure of +eal Astate Mort1a1e8.
Just to i,,ustrte, trial !y commissioner, it is even mandatory under +ule ',
7ABpropriation8. Lou will note that there are 2 sta1es in eBpropriation. >irst sta1e is to
determine whether the land is or may !e su!jected to eBpropriation, will !e used for the
common 1ood. 0econd sta1e is the determination of just compensation. Lou will note
from +ule ', that the determination of just compensation is not left to the court !ut
rather the court should appoint # commissioners. &nd these # commissioners will now
investi1ate, hear, conduct hearin1 and arrive at a report. $a<e note that under +ule #2,
the commissioner there also will have to su!mit a report.
6' &nd that report, is that !indin1 upon the court?
A' 5o. $hat is not !indin1 upon the court.
6' What are the options left to the court? ?o to +ule ',, there are at least . options.
A'
1. $he court may accept it.
2. $he court may reject it.
#. $he court may accept it in part and reject it in part.
.. $he court may remand it for further proceedin1s to the commissioner.
?anun din dito sa +ule #2 re1ardin1 sa commissioner. 0o the report of the
commissioner is not !indin1 on the court. &nd in fact all the parties must !e furnished
with the report. &nd there is a period of time the parties can =uestion that. (ut even if
the parties do not =uestion that, the court may totally reject the report. &lthou1h a
commissioner is more powerful than a deposition officer.
Ru,e DD : DEMURRER TO EVIDENCE (VERH IM4ORTANT 7U(JECT MATTER IN
T1E (AR)
6' What is the meanin1 to demur?
A' $o impu1n. $o =uestion.
NOTE' 9emurrer to evidence applies to !oth civil and criminal cases.
6' What are the similarities and what are the differences in the application of demurrer
to evidence in civil and criminal cases?
A' 7imi,rities'
1. n !oth civil and criminal cases, you file a demurrer to evidence after the plaintiff has
rested its case or after the prosecution, in criminal cases, has rested its case.
2. n !oth civil and criminal cases, they have the same 1rounds, which is the
insufficiency of evidence.
#. n !oth civil and criminal cases, it is availa!le only to the defendant or the accused.
Di))erences'
1. n civil case, the =uantum of evidence needed is preponderance of evidence while in
criminal case, it must !e proof !eyond reasona!le dou!t.
a. PF 0o is it harder to file demurrer to evidence in criminal case?
55
5o. t is easier !ecause the proof needed is proof !eyond reasona!le
dou!t. Gasi mataas an1 =uantum of evidence needed sa criminal cases,
so it is easier.
!. Which is more wei1hty or anoRn1 mas ma!i1at na e!idensya, e mas
madalin1 and demurrer.
2. n civil cases, there is no need a motion for leave of court while in criminal cases,
you can file a demurrer either with leave or without leave of court.
#. n civil cases, if the motion is 1ranted it amounts to dismissal of the case while in
criminal cases, if the motion is 1ranted it amounts to ac=uittal of the accused.
.. (ecause it amounts to ac=uittal, in criminal cases there is no appeal while in civil
cases there is appeal.
5. f the 1round of the motion, in civil cases, is appealed and then it is reversed, the
defendant loses the ri1ht to present evidence while in criminal case if demurrer to
evidence was filed with leave of court and was denied the accused may present his
evidence and if the demurrer to evidence was filed without leave of court and was
denied the accused can no lon1er present his evidence and su!mits the case for
decision !ased on he prosecutionRs evidence.
6' Which court?
A' n criminal cases, the trial court while in civil cases, the appellate court.
NOTE' +emem!er it is always availa!le to the defendant or the accused. &nd in civil
cases, after the presentation of plaintiffRs evidence and then the defendant files a
demurrer to evidence and it is 1ranted the plaintiff will not ta<e that sittin1 down.
9efinitely the plaintiff will appeal, if the appellate court affirms it well and 1ood !ut if it is
reversed then the defendant loses its ri1ht to present evidence.
Rdio!e,t" &- De, Rosrio doctrine' When the %ourt of &ppeals reverses the trial
court and denies the demurrer to evidence, it is the duty of the %& to proceed with the
trial and render jud1ment. $he %& cannot remand the case to the trial court for further
proceedin1s. &lso, +adiowealth loses the ri1ht to present evidence. Lou do not even
have to file a writ of eBecution with the appellate court eBcept in eBecution pendin1
appeal under 0ection 2 of +ule #*. (ut even if you file it with the appellate court, the
appellate court will have to order the trial court to issue the writ of eBecution.
NOTE' 9o not confuse this with eBecution !ecause the appellate court cannot eBecute
jud1ments !ut always the trial court.
+adiowealth is now the rulin1 with re1ard to reversal of the appellate court of the
demurrer to evidence.
NOTE' +emem!er that demurrer now is under 0ection 2# of +ule 11* of the new
criminal procedure. t is wron1 to state in criminal cases you can only file demurrer with
leave of court !ecause 0ection 2# of +ule 11* specifically provide that while the
accused may file demurrer to evidence with or without leave of court. What you have to
loo< here into is if the accused files a demurrer to evidence without leave of court he
files it at his own ris<. Why? (ecause in case of denial he loses his ri1ht to present
evidence. :owever, +adiowealth is a civil case.
n case of reversal or an order of dismissal, in a demurrer to evidence, the appellate
court must now render jud1ment and does not have to remand it !ecause there is no
more evidence to receive. $he defendant havin1 lost his ri1ht to present evidence.
56
Demurrer in crimin, cses is i,,ustrted in t"e cse o) (ernrdo &s- Court o)
A//e,s- &nd it is here in this case that the distinction !etween criminal and civil cases
has !een esta!lished.
(ernrdo &- CA doctrineF &tty. Miravite had a heated ar1ument with the jud1e. $he
lawyer as<ed to file for a demurrer to evidence, in open court. $he jud1e denied the
demurrer. $hen the lawyer a1ain as<ed for a demurrer to evidence !ut was a1ain
denied. $he doctrine here in this case is that when you file a motion for a demurrer to
evidence without leave of court you ris< of waivin1 your ri1ht to present evidence.
Lou !etter !e careful in filin1 a motion for a demurrer to evidence especially in civil
cases. n criminal cases, as lon1 as you file a motion for leave and remem!er what did
we study on +ule 15 on motions that when you file a motion for leave you have to
already attach a copy of your demurrer. 0o that under the present practice, when your
motion for leave to file demurrer to evidence is denied, do not insist !ecause your
demurrer will just !e denied.
Ru,e D9 : JUDCMENT ON T1E 4LEADINC7
6' When may the court render a jud1ment on the pleadin1s?
A' When an answer fails to tender an issue, or otherwise admits the material alle1ations
of the adverse partyRs pleadin1.
We have studied one of the cases the &llied case. We have studied it under modes of
discovery a re=uest for admission.
$he defendant files an answer. $herefore the one who as<s for jud1ment on the
pleadin1s should !e the plaintiff.
6' May a defendant ever as< a jud1ment on the pleadin1s?
A' Les. With re1ard to permissive counterclaim. Why? (ecause a permissive
counterclaim re=uires an answer while a compulsory counterclaim does not re=uire an
answer !ecause the alle1ations therein are deemed controverted.
6' :ow would you distin1uish summary jud1ments 7+ule #58 from jud1ment on the
pleadin1s 7+ule #.8?
A'
1. n jud1ment on the pleadin1s, it simply means that the jud1ment is !ased solely on
the pleadin1s. &nd what are these pleadin1s, it is the complaint, the answer and
sometimes the reply. $hose are the only !ases. $hatRs why a jud1ment on the
pleadin1s is not availed of in the &llied case !ut rather summary jud1ment. n
summary jud1ments, the jud1ment is !ased not only on the pleadin1s !ut on
affidavits, depositions and admissions.
2. While in +ule #., it is totally !ereft of an issue while in +ule #5 there is an issue, only
that the issue is not 1enuine. $here are issues !ut the issues are irrelevant and
immaterial.
n summary jud1ments, apparently, althou1h an eBpanded jud1ment on the pleadin1s
!y even sayin1 that there can !e jud1ment on the pleadin1 to !e moved even !y the
defendant as far as permissive counterclaim is concerned. (ut ta<e note that
specifically in +ule #5, it spea<s of a claim !y the plaintiff as well as in 0ection 2
principally !y the defendant.
57
In t"e A,,ied cse !"ic" i,,ustrtes summr% 3udgment, there is a re=uest for
admission !ut the re=uest was never answered. $here was an order from the court to
answer the re=uest. t was never complied with. $herefore a summary jud1ment may !e
as<ed.
Ru,e D> : JUDCMENT7$ GINAL ORDER7 AND ENTRH T1EREOG
& jud1ment may !e final !ut not eBecutory. (ut once it is eBecutory it must necessarily
!e final.
6' 0o what is a final jud1ment as distin1uished from an eBecutory jud1ment?
A' & jud1ment may !e final !ut not eBecutory !ut once a jud1ment is eBecutory is must
necessarily !e final. (ecause a final jud1ment is one where the trial court is left with
nothin1 else to do. $he court has completed its tas<. t has nothin1 else to do on the
part of the court. t has disposed of the case. 4ud1ment has !ecome final.
(ut it is not yet eBecutory !ecause the period to appeal or to reconsider or to retry the
case has not eBpired yet. 2nly after the eBpiration of the period for new trial,
reconsideration or appeal will the jud1ment !ecome final and eBecutory.
NOTE' ?raphically, if you write a circle, that circle represents an eBecutory jud1ment.
Within that circle is another smaller circle representin1 a final jud1ment. $wo circles,
one inside the other. if you have the !i11er circle, necessarily you have the smaller
circle. (ut you can have the smaller circle without the !i11er circle.
s that a sufficient analo1y? Want a stron1er analo1y? f the smaller circle represents
seB, the !i11er circle represents love, once there is love necessarily there must !e seB
!ut there can !e seB without love.
In Ru,e D>$ t"e )in, order re)erred to in "ere is e#ecutor% not 3ust )in,-
6' What are the re=uirements for a jud1ment?
A'
1. t must !e in writin1 7walan1 jud1ment na oral8"
2. $he jud1ment must !e personally written !y the jud1e" and
#. $he jud1ment must !e entered. (ecause a jud1ment which is not entered has only
!ecome final !ut not eBecutory.
.. $hat every jud1ment the facts and the law on which its disposition was anchored
and !ased.
t is not just a procedural re=uirement, !ut this is even a constitutional re=uirement.
7ection 5$ second sentence$ Ru,e D> is IM4ORTANT which is LT1E DATE OG
GINALITH OG T1E JUDCMENT OR GINAL ORDER 71ALL (E DEEMED TO (E T1E
DATE OG IT7 ENTRHL-
6' ABplain this sentence.
A' t means that when the jud1ment has !ecome eBecutory, the date where the
jud1ment has !ecome eBecutory shall !e the date of its entry.
6' What do you mean !y entry of jud1ment?
A' &n entry of jud1ment is the recordin1 of the jud1ment !y the cler< of court in the
!oo< of entries of jud1ment. (awat <orte may li!ro n1 entries of jud1ment.
58
f the jud1ment was rendered !y the +$% Manila on 4anuary 5, 2005, let us assume
that all the parties to that case received a copy of the jud1ment on 4anuary 10, so the
parties have until 4anuary 25 715 days8 to file Motion for 5ew $rial, Motion for
+econsideration, or &ppeal. &fter 4anuary 25, the jud1ment has !ecome eBecutory.
6' 0uppose the cler< of court entered or recorded the jud1ment in March 15, 200,,
when is the entry of jud1ment?
A' $he entry of jud1ment is 4anuary 25. to an1 i!i1 sa!ihin n1 second sentence of
section 2 of +ule #'. :indi <a!ali<taran. 0o the jud1ment was entered 4anuary 25 and
not March 15.
6' What is the rationale of the law?
A' 2therwise if it is the actual recordin1 which is the entry of jud1ment then the finality
of the jud1ment and its eBecutory character will depend upon the will of the cler< of
court. $he entry, when the period to appeal has eBpired.
6' Why is the entry of jud1ment is important?
A' t is very important !ecause there are procedural actions which is counted from its
entry of jud1ment.
6' Why eBecution?
A' 4ud1ment can !e eBecuted only !y motion within a period of 5 years from entry of
jud1ment. )etition to relief can only !e done within a period of ' months from entry of
jud1ment. Gaya importante yun. Gaya hindi yun1 actual recordin1 althou1h the meanin1
of entry is the actual recordin1 !ut the entry is rec<oned when the jud1ment has
!ecome final and eBecutory. When the period for reconsideration, or appeal has not
!een availed of and has eBpired.
6' What are the different <inds of jud1ment?
A'
1. 4ud1ment upon compromise"
2. 4ud1ment upon confession"
#. 4ud1ment upon the merits"
.. %larificatory jud1ment"
5. 4ud1ment non pro tunc 7now for then8"
'. 4ud1ment sin perjuicio"
,. 4ud1ment !y defaulty 70ec. #, +ule *8"
-. 4ud1ment on the pleadin1s 7+ule #.8"
*. 0ummary jud1ment 7+ule #58"
10. 0everal jud1ment 70ec. ., +ule #'8"
11. 0eparate jud1ment 70ec. 5, +ule #'8"
12. 0pecial jud1ment 70ec. 11, +ule #*8"
1#. 4ud1ment for specific acts 70ec. 10, +ule #*8"
1.. 4ud1ment on demurrer to evidence 7+ule ##8"
15. %onditional jud1ment" and
1'. >inal jud1ment
59
Jnur% 1?$ 5??=
RULE D=
NEW TRIAL OR MOTION GOR RECON7IDERATION-
$his is the remedy of the jud1ment o!li1or after the jud1ment has !ecome final !ut not
eBecutory.
6' s it mandatory?
A' 5o. t is not mandatory eBcept in certiorari as special civil action.
NOTE' & motion for reconsideration is not mandatory. $he remedy is availa!le !ut you
may or may not avail of it unless the rule as<s that you must first file a motion for
reconsideration. 2rdinarily, if the case is pendin1 !efore the appellate court, a motion
for reconsideration is advisa!le.
6' $he time frame, when can one file a motion for reconsideration or a motion for new
trial?
A' n cases of notice of appeal, within 15 days or in cases of record on appeal, within #0
days. When you 1o to special civil action, you will note that there are certain appeals
which must !e ta<en !y record on appeal !ecause there are several sta1es in an action.
n fact the !est eBample for a record on appeal is special proceedin1s in settlement of
estates.
6' (ut ordinarily it is 15 days. What is the point of reference of the 15 days?
A' >rom receipt or notice of jud1ment.
Lou file an appeal or motion for reconsideration or motion for new trial. We are dealin1
only with motion for new trial or reconsideration. ;nder the present rules, the 1rounds
have !een delineated. $hey have !een separated unli<e !efore prior to the 1**, rules
they have the same 1rounds. (ut now if you file a motion for new trial, you have to file it
on a valid 1round. f you file a motion for reconsideration, you have to file it on a valid
1round.
NOTE' f you file a motion for new trial on the 1round of either under a motion for
reconsideration, your motion will !e considered as a motion for reconsideration. 2n the
other hand, if you file a motion for reconsideration on any of the 1rounds under new
trial, your motion will !e treated as a motion for new trial.
0o your 1round is crucial !ecause they have !een separated already. (ut !oth spea< of
different 1rounds.
6' What are the 1rounds for motion for reconsideration?
A'
1. ABcessive award of dama1es"
2. Avidence is insufficient to justify the decision or final order" or
#. 9ecision or final order is contrary to law.
6' What are the 1rounds for a motion for new trial?
A'
1. >raud, accident, mista<e or eBcusa!le ne1li1ence which ordinary prudence could not
have 1uarded a1ainst and !y reason of which such a11rieved party has pro!a!ly
!een impaired in his ri1hts" or
2. 5ewly discovered evidence, which he could not, with reasona!le dili1ence, have
discovered and produced at the trial, and which if presented would pro!a!ly alter the
result.
60
n answerin1 the 1rounds for a motion for new trial, you have to complete the 1rounds
as stated under 0ection 1 +ule #,. Gulan1 daw pa1 fraud, mista<e, accident, or
eBcusa!le ne1li1ence or newly/discovered evidence lan1. Lou have to =ualify and that
=ualification is the complete sentence under the two para1raphs of 0ection 1 of +ule #,.
6' When is ne1li1ence eBcusa!le?
A' t is eBcusa!leF >irst, as to su!ject matter. f the su!ject matter is not that serious, it
can !e eBcused. (ut watch out for that <ind of eBplanation of eBcusa!le ne1li1ence
!ecause you must have read certain jurisprudence sayin1 that procedural rules should
not !e a deterrent to the proper administration of justice. 0o that it should 1ive way to
the su!stantive ri1hts of individuals. $hat is a very sweepin1 statement !ecause there
are certain procedural rules that must !e complied with.
0o there is no hard and fast rule as to when ne1li1ence is eBcusa!le. t must !e
considered on a case to case !asis.
6' What mista<e is referred here?
A' Mista<e of fact and not mista<e of law. (ecause in mista<e of law it amounts to
i1norance of the law. 0o it must !e mista<e of fact or misappreciation of facts. n
criminal law you have studied a!erratio ictus. (ecause in civil law, it says i1norance of
the law eBcuses no one.
6' :ow a!out accident?
A' ;nforeseen, uneBpected, or sudden occurrences. :ow a!out death, is it accident?
9eath is not an accident. 9eath is the most certain uncertainty. 0o it can never !e
accidental. 0ometimes it !ecomes accidental !ecause you donRt <now when it will stri<e.
:ow a!out missin1 the !us, train or airplane? 5o.
5ow letRs 1o to a very important 1round which is fraud. >raud here is not any <ind of
fraud !ut rather an eBtrinsic fraud to !e differentiated from intrinsic fraud.
6' When is there eBtrinsic and when is there intrinsic fraud?
A' ABtrinsic fraud connotes any fraudulent scheme eBecuted !y a prevailin1 party
outside of the trial a1ainst the losin1 party who !ecause of such fraud is prevented from
presentin1 his side of the case while an intrinsic fraud refers to acts of a party durin1 the
trial which does not affect the presentation of the case.
6' ?ive an eBample.
A' ABtrinsic fraudF f & 7witness8 was paid not to appear !efore the court for trial. ntrinsic
fraudF When the si1nature of the party was for1ed.
Remem+er' we are tal<in1 here of new trial. Meanin1 to say there has !een a trial
!ecause you are as<in1 for another trial. f you are as<in1 for another trial !ecause of
fraud, the fraud must have happened outside the proceedin1. $hat is what is meant !y
eBtrinsic, outside the proceedin1.
6' (ut if it is intrinsic, it is within the proceedin1. Why is it not a 1round for new trial?
A' (ecause you should have =uestioned it ri1ht there and then !ut you did not. 0o you
waive your ri1ht. >or eBample, durin1 the proceedin1 the other party presents a for1ed
document or a fictitious document and it was admitted. (ecause ri1ht there and then
you should have =uestioned it !ut !ecause you didnRt =uestion it the evidence has !een
admitted, you have considered to have waived your ri1ht. $hat is the meanin1 of
intrinsic fraud.
61
6' $he other 1round is newly/discovered evidence, !ut how do you =ualify that newly/
discovered evidence?
A' ;se the wordin1s of the rule. )ara1raph !, 0ection 1 of +ule #, states that T5ewly/
discovered evidence, which he could not, with reasona!le dili1ence, have discovered
and produced at the trial, and which if presented would pro!a!ly alter the result.T
$here are two cases, which have assi1ned, illustratin1 the specific re=uirements for
newly/discovered evidence. 2ne is a civil case and the other is a criminal case.
MendeIon &- OImis doctrine 7%ivil %ase8F +e=uisites of newly/discovered evidenceF
1. $he evidence had !een discovered after trial"
2. $he evidence could not have !een discovered and produced durin1 trial even with
the eBercise of reasona!le dili1enceF and
#. $he evidence is material and not merely corro!orative, cumulative or impeachin1
and is of such wei1ht that if admitted, would pro!a!ly alter the result.
NOTE' &ll # re=uisites must characteriEe the evidence sou1ht to !e introduced at the
new trial.
4eo/,e &- Li . .im doctrine 7%riminal case8F +e=uisites of newly/discovered evidenceF
1. $he evidence is discovered after trial"
2. 0uch evidence could not have !een discovered and produced at the trial even with
the eBercise of reasona!le dili1ence" and
#. $he evidence is material, not merely cumulative, corro!orative, or impeachin1, and
of such wei1ht that, if admitted, would li<ely chan1e the jud1ment.
$he 1round of newly/discovered evidence for a motion for new trial is not only availa!le
in civil cases !ut also to criminal cases under +ule 121.
6' What <ind of evidence does the rule refer to?
A' &ny <ind of evidence may !e used. Aither testimonial, documentary or real evidence
may !e used.
6' (ut there is a re=uirement, if it is testimonial evidence, when you file a motion what is
re=uired?
A' When you file for the motion for new trial, you have to attach the affidavits.
6' :ow a!out documentary?
A' Lou have to attach a certified copy of the document that was newly/discovered.
6' :ow a!out real evidence?
A' 9escri!e the real evidence. f it is capa!le of manual delivery, !rin1 it in court.
0o any <ind of evidence may !e newly/discovered. (ut in applyin1 for that newly/
discovered evidence, you have to comply with the ))id&it.
NOTE' &lso, in the 1round of >&MA, you also have to comply with an affidavit
re=uirement of affidavit of merits. Lou have to state in your affidavit what constituted
fraud, accident, mista<e or eBcusa!le ne1li1ence. $he court may either deny or 1rant
your motion.
6' f it is denied, what is the remedy?
A' Lou appeal from the jud1ment. (ecause this is an ad interim remedy.
62
6' f it is 1ranted, what is the effect of that?
A' )revious jud1ment is vacated. (ut this trial de novo must not !e understood as trial
de novo prior to the 1**, rules !ecause trial de novo !ac< then was complete settin1
aside of the decision or jud1ment or final order. ;nder the present rules it is relative, you
set aside the dispositive portion of the jud1ment !ut the evidence which have !een
admitted will remain and there is no need for reta<in1 them.
$his is different from motion for reconsideration. (ecause if your motion for
reconsideration was denied, your remedy was appeal also or even new trial as the case
may !e if you want to !ecause they have different 1rounds already.
6' (ut if it was 1ranted, does it set aside the jud1ment?
A' 5o. t only corrects the jud1ment. (ecause loo< at the 1rounds for motion for
reconsideration, it is more of an amendment. $here is no trial de novo here.
6' %an you file a second motion for reconsideration?
A' 5o. ABcept the 0upreme %ourt, where you can file a second, third or even fourth
motion for reconsideration.
6' %an you file a second motion for new trial?
A' Les. 2nly 1rounded on newly/discovered evidence. Lou cannot file a second motion
for new trial on >&MA !ecause they were already present or forms part within the the
proceedin1 not outside the proceedin1. 0o if you are 1iven a pro!lem, always
remem!er that the second motion for new trial is solely 1rounded on newly/discovered
evidence. (ecause when you file a motion for new trial on the 1round of newly/
discovered evidence for the first time, >&MA was already eBistent. (ut if you file a
motion for new trial on the 1round of >&MA, for the first time and it was denied, it is
possi!le that you will still file a second motion for new trial on the 1round of newly/
dicovered evidence.
6' (ut not in a motion for reconsideration. &nd that is precisely the rationale why there
is no second motion for reconsideration. Why?
A' (ecause all the 1rounds are there already. 0o why donRt you include it in your first
motion for reconsideration. f you find out that the jud1ment is contrary to law, that the
award of dama1es is eBcessive, that the evidence is insufficient, arenRt they all present
when you file your first motion for reconsideration 7answer was yes8, then why didnRt you
include it? 0o there is no second motion for reconsideration.
6uestion )rom student' When your motion for new trial was denied your remedy is
appeal. When you want to =uestion the denial of the motion for new trial, you can file a
special civil action of certiorari. 5ow, if your certiorari was 1iven due course, ordinarily
the 0% will remand the case for further proceedin1s to the trial court. f your appeal was
also 1iven in due course, the appellate court will ta<e co1niEance of it. 0o technically
there are two cases pendin1 !efore two different courts !ut with the same issues,
su!ject matter and same parties. :ow are we 1oin1 to consolidate or resolve this issue?
Att%- (rondi, did not s2ure,% ns!er t"is 2uestion- $hou1h he reco1niEed that for
academic reasons, this is allowed !ecause they have different 1rounds. (ut practically
spea<in1, it is a waste of time !ecause if you file a petition for certiorari under +ule '5,
the 0%, ordinarily, does not resolve such issue within 15 days. 0o you run the ris< of
havin1 the period prescri!ed. 0o why !other filin1 for a special civil action of certiorari
when it does not interrupt the runnin1 of the re1lementary period for appeal from the
denial of the motion for new trial. t is how these cases can !e consolidated that
pro!lem arises. &non1 <aso an1 pipiliin mo?
RULE DE
63
4ETITION GOR RELIEG JUDCMENT7$ ORDER7 OR OT1ER 4ROCEEDINC7
6' $here are two forms of petition for reliefF
A'
1. )etition for relief from jud1ment 70ection 18 and
2. )etition for relief from denial of an appeal 70ection 28.
6' What are the 1rounds?
A' >raud, accident, mista<e, or eBcusa!le ne1li1ence. $he same 1rounds as the motion
for new trial. &nd !ecause we have the same 1rounds, the limitation is Thad you the
opportunity to file a motion for new trial and you did not file a motion for new trial due to
your own fault or ne1li1ence, you lose your ri1ht even of filin1 a petition for relief.T
$hese are not alternative remedies. +emove from your mind that once you lose in your
motion for new trial or reconsideration and you did not appeal you can file a petition for
relief !ecause it is wron1. $hey have the same 1rounds.
6' What is important here is the time frame. When?
A'
1. Within '0 days after the petitioner learns of the jud1ment, final order, or other
proceedin1 to !e set aside" &59
2. 5ot more than ' months after such jud1ment or final order was entered, or such
proceedin1 was ta<en.
6' We studied under +ule #' re1ardin1 entry of jud1ment. When is jud1ment entered?
A' $he entry of jud1ment is the date of finality. t is not the actual recordin1 of the
jud1ment in the !oo< of entries. 4ud1ment !ecomes final when the period for appeal,
new trial or reconsideration has already eBpired and one did not avail it, the jud1ment
!ecomes final and eBecutory. &nd when the jud1ment has !ecome final and eBecutory it
is the date of entry. &nd from that date of entry, you count ' months within which to file
your petition for relief from jud1ment.
6' & was a jud1ment o!li1or 7in other words he lost in the case8. 5o motion for new trial,
reconsideration or appeal was filed. 4ud1ment was entered on 4anuary 10. f you have
' months therefrom, you have until 4uly 10. (ut & came to <now of the jud1ment only on
4uly 5. $he rule says he has '0 days from <nowled1e of the jud1ment within which to
file petition for relief from jud1ment. %an & still file, in this instance, a petition for relief
from jud1ment?
A' Les, & can still file a petition for relief from jud1ment. & has only 5 days to file such
petition. (ecause !oth periods 7'0 days and ' months8 must !e complied with.
6' f the entry of jud1ment was 4anuary 10 and & came to <now of it in 4anuary 20, until
when can he file a petition for relief from jud1ment?
A' March 20 or March 22 7if leap year8. n other words, '0 days lan1. :indi na !i!ilan1in
from 4anuary 10 up to 4uly 10 !ecause you came to <now of the jud1ment on 4anuary
20. 0o !oth periods must !e complied with.
$he rationale of the law is donRt sleep on your ri1hts. Lou came to <now of it already,
you should ma<e a move. n other words, you must <now it within the ' month period.
Lan and i!i1 sa!ihin n1 !atas.
64
NOTE' f you come to <now of it, in our eBample, !y &u1ust, you can no lon1er file
!ecause the entry of jud1ment was made on 4anuary 10. $he defense for lac< of
<nowled1e is unavailin1 !ecause the ' month period must !e complied with.
2ne student wanted to clarify somethin1F $he '0 day and ' month period were relaBed
!y the 0% in the case of &r1ana v. +epu!lic 75ovem!er 1*, 200.8.
$hatRs new, &tty. (rondial will chec< on that.
6' $he other one is petition for relief from denial of appeal. :ow is this?
A' $he 1rounds 7>&MA8 are the same. (ut prayer here is that the appeal !e 1iven due
course.
6' What happens if the petition for relief was 1ranted 7either 0ec 1 or 0ec 28?
A' n effect as if the court 1rants a new trial under 0ection 1. ;nder 0ection 2, +ule .0/
.2 apply already. 0ince the appeal has !een 1ranted, you have to elevate the records to
the appellate court.
NOTE' )lease ta<e note that when a party files a petition for relief from jud1ment, the
jud1ment is already eBecutory. n other words, !y filin1 a petition for relief from
jud1ment, it will not stop the eBecutory character of the jud1ment. 0o the jud1ment can
!e eBecuted !ecause the jud1ment has !ecome final and eBecutory.
6' 0o what is your remedy?
A' $o1ether with your petition for relief, you avail of the provisional remedy of the
preliminary injunction or $+2. 2therwise, if you donRt do that, the petition for relief will
!ecome useless !ecause it will not chan1e the eBecutory character of the jud1ment.
+emem!er here that the petitioner for relief from jud1ment, chances are would !e the
jud1ment o!li1or. &nd !ecause you were not a!le to 1et an injunctive relief the jud1ment
is eBecuted.
6' What happens now if the jud1ment is eBecuted and then the petition for relief was
1ranted without preliminary injunction?
A' @et me 1ive a concrete eBample. Mr. & files an action for the recovery of sum of
money a1ainst ( for )1M. 4ud1ment was rendered in favor &. ( did not file a motion for
new trial, reconsideration or appeal without his fault. 0o his remedy is petition for relief
from jud1ment. (ut the jud1ment in favor of & was already eBecutory. (Rs injunctive relief
was denied. 0o the jud1ment was eBecuted. $hereafter ( was 1ranted the injunctive
relief. 5ow what will happen? ( can file for claim for dama1es or restitution. $hatRs why
petition for relief is not often 1ranted.
Mesin &- Meer doctrineF T&ny courtT only means the M$% and +$%. t does not eBtend
to %& or 0%. $he %& and 0% are 1overned !y separate rules. $he 0% said that +ule #-
is only availa!le !efore the M$% and +$%.
$he 0% cited the historical !ac<1round for this. (ecause prior to the 1**, rules, if the
jud1ment is rendered !y an inferior court, the petition for relief is filed with the +$%. f
the decision is rendered !y the +$%, it is filed with the +$%. ;nder the 1**, rules,
petition for relief under +ule #-, you file it where the case was decided. 0o if it was
decided with the M$%, you file it with the M$%. f it was decided with the +$%, you file it
with the +$%.
NOTE' (ut ta<e note, it is not a motion !ut a petition. n other words, it is a separate
65
action. With that =ualification that while it is a separate action where you can file it
anywhere, the limitation is you file it in the court where the jud1ment was rendered.
0uppose, if itRs the M$%, you file it with the M$% and if itRs the +$%, you file it with the
+$%. ;nli<e !efore, prior to the 1**, +ules, if it is decided !y the M$%, you file the
petition for relief with the +$%. f the decision emanates from the +$%, you file it with
the +$%. 51ayon, pinantay na lan1 yan. &nd it was !ecause of +ule 5 on uniform
procedure !efore the court.
Mercur% Drug &- CA doctrineF
6' When do you count the '0/day period?
>rom notice. 5otice to whom? Lun an1 doctrine dito. 5otice to counsel is notice to
client. $hus, when there was already a lapse of period within which to file the petition for
relief, the client is already !arred from filin1 such petition.
6' ncidentally, do you understand this notice? 9i !a, sa!i sa petition for relief, you file it
within '0 days when you learn of the jud1ment. :indi !a when you learn of the
jud1ment, your remedy is appeal? When do you learn the jud1ment, when you receive a
copy of the jud1ment. 0o, does it follow that when you receive the copy of the jud1ment,
you donRt appeal na lan1 !ut file a petition for relief?
A' 5o. you cannot do that. 5otice referred to there, to the party who will file a petition for
relief is notice other than the re1ular notice comin1 from the court. n other words, the
petitioner came to <now of it other than the re1ular way. (ecause an ordinary party or
any party for that matter, once you receive a copy of the jud1ment, the natural and usual
reaction would !e to appeal.
RULE D8
EKECUTION$ 7ATI7GACTION AND EGGECT7 OG JUDCMENT
$his is eBecution of jud1ment and final order. told you !efore that there are # sta1es in
the process of lawF preparation of pleadin1s, trial and eBecution. &nd the most difficult is
+ule #* as well as the most important in practice. (ecause no matte how 1ood you are
in the 1st two sta1es !ut you cannot eBecute, you only win !y paper.
NOTE' & jud1ment which can !e eBecuted is only a jud1ment which is not just final !ut
also eBecutory.
6' $here are 2 <inds of eBecutionF
1. &s a matter of ri1ht and
2. @eave of court, otherwise <nown as discretionary, or eBecution pendin1 appeal.
7ection 1 !"ic" is e#ecution s mtter o) rig"t-
6' When do you eBecute it?
$hat is the most important element there. Lou can eBecute it only within a period of 5
years from entry of jud1ment. Lou can eBecute that jud1ment only within a period of 5
years. $hereafter you can no lon1er eBecute the jud1ment, you have to first revive the
jud1ment. $hatRs why some !oo<s say that there are two ways to eBecute the jud1ment,
either !y motion or !y action. Lou find that in 0ection ' of +ule #*.
0o if the 5/year period is counted from entry of jud1ment, the time of entry of jud1ment
is very very important. $hatRs why we discussed that in 0ection 2, second sentence of
+ule #'. )ina/underline <o sa inyo. (ecause this is where you count the jud1ment to !e
eBecuted !y motion. 0o when the jud1ment has !ecome final and eBecutory, the
jud1ment o!li1ee 7winner in the case8 will have to file a motion with the trial court 7where
the main action was filed8. n matters of eBecution, no appellate court can issue a writ of
66
eBecution. Whether that appellate court is the +$%, the %& or the 0%, they cannot issue
a writ of eBecution. t must always 1o !ac< to the court of ori1in.
0o there are 2 instances therefore. f the case is filed with the M$% and jud1ment was
rendered !y the M$% and the jud1ment was not appealed and therefore !ecame final
and eBecutory, you file your motion for the issuance of the writ of eBecution with the
M$%.
f the jud1ment was appealed to the +$%. Lou cannot eBecute it, as a matter of ri1ht
!ecause it is not yet eBecutory. &nd as lon1 as the appellate court is concerned, the
jud1ment is not yet final !ecause the appellate court has somethin1 else to do yet. 5ow
suppose, the appellate court affirm in toto the decision of the M$% and there is no more
appeal to the %&, the jud1ment !ecomes final and eBecutory.
6' Which jud1ment?
A' $he jud1ment affirmin1 the decision of the M$%.
6' (ut what is the jud1ment that you are 1oin1 to eBecute? What you are 1oin1 to
eBecute is the jud1ment of the M$%. 0o where will you file the motion?
A' Lou file it with the M$% and not with the +$%.
$he old rule says that in order for the trial court to rule on your motion for the issuance
of your writ of eBecution, it must have the copies of the records of the case !ecause as
you will find out in +ules .0/.2, when the case is appealed, one of the re=uirements for
appeal is to elevate the records to the appellate court. &nd when the appellate court
affirms and it !ecomes final and eBecutory, i!a!ali< yun1 records sa !a!a.
5ow, you donRt have to wait anymore for the records from the appellate court. Lou can
file a motion even if the records are still with the appellate court in the trial court. (ut the
re=uirement is you 1et a certified true copy of the jud1ment of the appellate court
to1ether with the entry of jud1ment. &nd then you file it with the trial court. 0o motion for
the issuance of the writ of eBecution must strictly comply with +ule 15 on motion,
otherwise it must !e in writin1, it must !e set for hearin1, and it must !e served on the
adverse party 70ec . of +ule 158.
6' +ationale?
A' $o 1ive the jud1ment o!li1or the chance to contest it.
6' &nd what is the !asis for contestin1?
A' (ecause remem!er, it is not discretionary on the part of the court to issue or not to
issue a writ of eBecution. $he issuance of the writ of eBecution is ministerial on the part
of the trial court. 0o that if the trial court does not issue the writ of eBecution, the trial
court may !e su!jected to mandamus. (ut under the present rule, you donRt have to
recourse to mandamus anymore !ecause you file your motion with the trial court simply
attachin1 a certified copy of the decision of the appellate court to1ether with the entry of
jud1ment. 0et it for hearin1. &nd as a matter of course, the trial court will issue the writ
of eBecution.
Jnur% 11$ 5??=
67
Argn & Re/u+,ic o) t"e 4"i,i//ines (99D 7CRA 1E9) No&em+er 18$ 5??9
0o it is wron1 to say. $hat statement is wron1 in the !oo< !ecause of that decision. went over it. Rve
read it. Lou must have read it too. &nd admonish you to read that case so you would <now.
GACT7'
$his is the case a1ainst the heirs of the former mayor of Muntinlupa &r1ana and company. Marami ito. -
individuals and 2 corporations are the defendants here in the ori1inal case.
$his is a case filed !efore the 0andi1an!ayan. &nd the nature of the action was ill/1otten wealth of former
Mayor &r1ana of Muntinlupa %ity. 5ow in the course of the hearin1, definitely, !ecause this is an ill/1otten
wealth case under A2 1./& in relation to the creation of the )%??. $his particular case, while it was in
pro1ress !efore the 0andi1an!ayan, several pleadin1s were filed. &nd you <now !efore the
0andi1an!ayan, the complainant or the plaintiff was the )%??. $he )%?? was later on represented !y
the 20?.
n the course of the hearin1, after several pleadin1s, motions and postponements filed, they came out
with a compromise a1reement. $here was a compromise a1reement !etween the &r1anas and the
)%??. $his compromise a1reement principally states that ,5% of the properties of the &r1anas will !e
ceded in favor of the 1overnment and only 25% will remain with the &r1anas. $a<e note, percenta1e an1
pina1uusapan. ,5% of the properties su!ject matter of the case of ill/1otten wealth will !e 1iven !ac< to
the 1overnment and only 25% will remain with the &r1anas.. $he )%?? a1reed and the compromise
a1reement was eBecuted and even approved !y )resident >idel +amos. &nd so, on the !asis of the
compromise a1reement su!mitted to the 0andi1an!ayan, the 0andi1an!ayan rendered a jud1ment on
compromise. 0o there was a jud1ment on compromise. @ater on, the 20?, upon review of the
compromise a1reement, even after the jud1ment of compromise has already !een rendered, found out
that it was entered fraudulently. n other words, the compromise a1reement was very very unfavora!le to
the 1overnment. Why? (ecause the ,5% property ceded to the 1overnment was worth only a!out )hp .
million. $he 25% remainin1 with the &r1anas was worth )hp #.UU (@@25. n other words, the ,5% was
only .15% worth of the entire property while the 25% was worth **.-5%. 0o this was very
unconsciona!le. t was entered into in connivance with the )%?? %ommissioners and the heirs of
&r1ana.
0o upon the review of the 20?, the 1overnment filed a motion to rescind to1ether with a prayer of
annulment of the jud1ment on compromise. +emem!er that a jud1ment on compromise is immediately
eBecutory, it is not appeala!le. (ut !ecause this was entered in fraud of the 1overnment, what the 20?
did was to file a motion to rescind the compromise a1reement with prayer of cancellation or nullification
on the jud1ment on compromise. :indi pweden1 i/appeal, certiorari has already lapsed !ecause in
certiorari you have only '0 days. Mata1al na ito. $he 0andi1an!ayan, loo<in1 into it, did not dismiss the
case !ut treated the motion to rescind as a petition for relief from jud1ment. Lun an1 catch. $he motion to
rescind was treated as a petition for relief from jud1ment !ecause there was a prayer for annulment of the
jud1ment on compromise. $he respondent this time 7&r1anas8 says, if this is a petition for relief, it was
filed out of time, !ecause under 0ection # of +ule #-, it must !e filed within '0 days from <nowled1e of
the jud1ment and ' months from entry of jud1ment. Mata1al na ito e. t is already outside of the
re1lementary period. When the 0andi1an!ayan went over the case, they discovered that it was filed ',
days from <nowled1e !ut within the ' month period from entry of jud1ment or from jud1ment. (ecause a
jud1ment on compromise, !ein1 immediately eBecutory, has no entry of jud1ment or the entry of jud1ment
!ecomes immaterial. 0o that the '0 day period !ein1 a jud1ment on compromise and the ' month period
cannot !e counted from <nowled1e or entry !ut it must !e counted 7!oth '0 days and ' month period8
from rendition of jud1ment. &nd countin1 from the rendition jud1ment, !ein1 the time that the parties
came to <now of it, ', days have lapsed outside of the '0 day period.
7U4REME COURT DECI7ION'
$he 0%, on certiorari, said 7and i would emphasiEe this statement8 !oth periods provided for in 0ec # of
+ule #- must !e 0$+%$@L complied with !ut nonetheless, it does not mean that there is no eBception to
the rule. 0o the rule remains that it must !e complied with 0$+%$@L. $he '0 day period and the ' month
period from <nowled1e and from entry of jud1ment. $his &r1ana case is an eBception. &nd in fact the rule
in 0ection # of +ule #- will not strictly apply. Why? (ecause first, there is no point from which <nowled1e
should !e counted from or from which entry should !e counted from !ecause it is a jud1ment on
compromise. &nd secondly, it was not a petition for relief per se !ut it was a motion to rescind ta<en as a
petition for relief.
6' Why did the 0% ma<e this as an eBception?
A' >irst, !ecause the 1overnment is involved. >or it will !e disadvanta1eous to the
1overnment. 0econd, >raud was the reason. &1ainst the 1overnment.
$herefore, petition denied. )analo an1 1o!yerno. What do you eBpect?
68
NOTE' $he 0upreme %ourt can always relaB cases. (ecause the 0% is not 1overned !y
the +ules. (ecause one time the 0% can decide one way while on another time, the 0%
can decide on another way. @i<e for eBample the eBecution pendin1 appeal we are
dealin1 here. (efore, 2ld &1e is not a 1ood reason for eBecution pendin1 appeal, !ut
later on, i thin< it is .0# 0%+& in the case of >ar Aast (an< and $rust %o. vs. $oh, 0r.,
the 0% said that old a1e is a 1ood reason for eBecution pendin1 appeal. 0ee? (a<it
1anoon? Lou try to read the case and loo< also who was the lawyer for $oh. $he lawyer
for $oh was the very famous Mi<e &rroyo.
$hose doctrinal cases never chan1e. May side chan1es !ut these are not ratio
decidendi decisions !ut an o!iter dictum. 0ettled? 0o we maintain na tama pa din an1
lecture <o.
Vi,,mor cse 991 7CRA- Red it-
0o letRs proceed with eBecution.
6' was tellin1 you yesterday that there are two <inds of eBecution of a jud1ment.
A' CENERAL RULE is that a jud1ment which can !e eBecuted must !e a jud1ment not
just final !ut eBecutory. n other words, the ri1ht to appeal as well as the ri1ht for
reconsideration or new trial, the period has already lapsed.
0o under 7ection 1$ it is e#ecution s mtter o) rig"t. ;nder 7ection 5$ it is
e#ecution +% ,e&e o) court, otherwise <nown as discretionr% e#ecution or
e#ecution /ending //e,. 0o when you read those # terms, pare/pareho lan1 yun.
6' ;nder 0ection 1, when is it a matter of ri1ht?
A' When the jud1ment has !ecome eBecutory, it is ministerial on the part of the trial
court to issue the writ of eBecution. Ministerial to issue the writ of eBecution.
6' f it is ministerial, why is it re=uired on the part of the jud1ment o!li1ee or the
jud1ment creditor to file a motion?
A' n order to afford the jud1ment o!li1or due process. (ecause he may still file an
o!jection.
6' &nd what is the possi!le 1round for o!jection?
A' $he finality of the jud1ment. (ecause as was sayin1, as far as the court is
concerned the jud1ment may !ecome already eBecutory !ut as far as the jud1ment
o!li1or the jud1ment is not eBecutory yet !ecause it was not received !y him or he did
not <now a!out the jud1ment havin1 !een received !y other party or persons other than
himself.
NOTE' &nother thin1 we should remem!er here is that only the trial court that can issue
the writ of eBecution. Whether that case has already reached the 0%, the 0% cannot
and should not issue the writ of eBecution.
0o if it started with the M$%, and it reached the 0%, when it comes to eBecution, it is still
the M$% which should eBecute.
6' f it is the M$% or if it is the trial court, as the case may !e, which should eBecute?
What is necessary?
A' 0imply a motion for the issuance of the writ of the eBecution complyin1 with +ule 15
particularly 0ections ./'. (y then it is ministerial on the part of the jud1e or the court to
issue the writ of eBecution.
6' (ut suppose the case started with the M$% !ut upon finality of the jud1ment, the
69
jud1ment was appealed to the +$%. &nd then the +$% affirms the jud1ment, and the
jud1ment o!li1or never went up to the %&, therefore, the jud1ment has !ecome final
and eBecutory. Which jud1ment has !ecome final and eBecutory?
A' $echnically, it is the jud1ment affirmin1 the decision of the M$%.
6' (ut what are we suppose to eBecute?
A' 5ot the jud1ment of the +$% !ut the jud1ment of the M$%.
6' :ow do you 1o a!out it?
A' Lou still file your motion for eBecution with the M$%. 5ever with the +$%. &s a matter
of procedure, the M$%, which should now issue the writ of eBecution, should await the
records from the +$%. (ut under the present rules there is no need for that. (ecause !y
simply 1ettin1 a copy of the entry of jud1ment 7which jud1ment? the jud1ment affirmin1
the jud1ment of the M$%8 as well as the jud1ment of the +$%, affirmin1 the jud1ment of
the M$%, attachin1 the same to your motion for eBecution filed in the M$% on that !asis,
the M$% can already issue the writ of eBecution.
6' 0uppose the M$% does not issue the writ of eBecution, what is now your remedy?
A' 2rdinarily, the remedy is mandamus. (ecause the issuance of the writ of eBecution is
only a ministerial act. (ut under the present rules, you donRt have to file mandamus. t is
very easy now, you simply file a motion with the +$% 7which is the appellate court here8
prayin1 that an order !e issued directin1 the M$% to issue the writ of eBecution. 5o
need for mandamus. &lthou1h mandamus is a remedy, !ut it is a very len1thy procedure
as a remedy.
7ection 5 s/e<s o) E#ecution /ending A//e,. 0o in the same eBample that 1ave,
the M$% renders jud1ment, under +ule .0, that jud1ment is appeala!le within a period
of 15 days with the +$%. Within that period, the jud1ment o!li1ee wants to eBecute it
pendin1 appeal he may file a motion for eBecution pendin1 appeal with the M$%.
6' 0uppose the appellant has already filed his notice of appeal, since the notice of
appeal under +ule .0 must !e filed with the $rial %ourt, when should the motion for
eBecution pendin1 appeal !e filed?
A' 5otwithstandin1 the filin1 of the notice of appeal, the motion for the issuance of the
writ of eBecution must still !e filed with the trial court, in this instance the M$%, as lon1
as the records of the case have not !een transmitted to the +$%. $his is what you call
eBercise of residual jurisdiction.
6' 0uppose the records of the case, pursuant to the notice of appeal, have already
!een transmitted to the +$%, where will you file?
A' 0ince the notice of appeal renders loss of jurisdiction over the su!ject matter as far
as the M$% is concerned, you file your motion for eBecution pendin1 appeal with the
+$%.
0hould the +$% resolve your motion in your favor, nevertheless the +$% cannot issue
the writ of eBecution. t can only issue an order directin1 the M$% to issue the writ of
eBecution pendin1 appeal.
6' :ow do you stay the eBecution of a jud1ment?
A' Lou stay that !y filin1 a supersedeas !ond. $his is one meanin1 of a supersedeas
!ond found in the +ules. 9onRt confuse that with the supersedeas !ond found in +ule ,0
7unlawful detainer and forci!le entry8. (ecause the supersedeas !ond referred to in
+ule ,0 is e=uivalent to the amount of unpaid rentals. $he supersedeas !ond here is in
the amount su!ject to the discretion of the court. We should answer for any dama1es
that the jud1ment or the appellant mi1ht incur.
70
6' What are the instance when a jud1ment cannot !e stayed? Why?
A' (ecause of their very nature. Lou find that in 0ection .. njunction, +eceivership,
&ccountin1, 0upport or such other jud1ments declared to !e immediately eBecutory
unless otherwise ordered !y the trial court.
To i,,ustrte'
f you 1et an injunctive relief, it is a matter of ur1ency. 0o if you stay the implementation
of a writ of preliminary injunction then you defeat the very purpose for an injunctive
relief. $hat is why it cannot !e stayed.
$he same thin1 with support. :umihin1i n1 support <asi mamamatay na sa 1utom. (ut
if you can still stay that, you defeat the very purpose of order of support.
NOTE' $he writ of eBecution is not addressed to any party !ut rather it is addressed to
the sheriff, that is why a party, for not complyin1 with the writ of eBecution, cannot !e
held lia!le for contempt. 2nly the sheriff may !e lia!le for contempt !ecause the writ of
eBecution is addressed to the sheriff. &nd the sheriff must implement the writ of
eBecution immediately. f he does not implement the writ of eBecution, he may !e held
lia!le for contempt of court.
6' (ut suppose the sheriff found out that the jud1ment o!li1ee is dead?
A' $herefore the sheriff may cause, still, the implementation of the writ of eBecution
throu1h the eBecutor, administrator or successor/in/interest of the jud1ment o!li1ee.
6' (ut in the case the jud1ment o!li1or is dead?
A' $he writ of eBecution can only !e implemented a1ainst the eBecutor or administrator
of the jud1ment o!li1or if the action is for recovery of real or personal property or for
enforcement of a lien thereon. Why is this so? (ecause of 0ection 1 of +ule -' and
!ecause of 0ection 20 of +ule # which we have studied. Money claims, specially if it is
!ased on contracts, 0ection 20 / %ontractual Money %laims of +ule #. ;pon the death
of the defendant, the case shall not !e dismissed !ut it should continue up to entry of
jud1ment. &nd no writ of eBecution can issue !ecause it will !e char1ed as a money
claim a1ainst the estate under +ule -'.
NOTE' $hat is why itRs said there if a writ of eBecution is supposed to !e implemented
a1ainst a deceased jud1ment o!li1or, ta<e note, that it can !e implemented a1ainst the
eBecutor or administrator only, if the action is recovery of real or personal property or
enforcement of a lien thereon. 2therwise, it should !e filed as a claim a1ainst the
estate.
$he sheriff, who is implementin1 the writ, is !ound to ma<e a return. &nd the return
must !e made copy furnished the jud1ment o!li1ee within a period of #0 days. &nd
every #0 days thereafter, if there is no full satisfaction yet of the jud1ment.
7ection > is im/ortnt.
6' $hese are the 2 ways !y which a jud1ment may !e eBecuted or a writ of eBecution
may !e implemented.
A' $he first way is !y motion. &nd the second is !y action. $he writ can only !e
eBecuted !y motion, meanin1 to say you 1et a writ of eBecution which you see< to
implement !y motion from the date of the entry of jud1ment and 5 years therefrom. 0o
the time limit is only 5 years. $hereafter, you can no lon1er secure a writ !y motion, !ut
if you want to implement the jud1ment you have to file an action. &nd the action that you
have to file will !e an action to revive the jud1ment.
Let me i,,ustrte'
71
f on 4anuary 1, 2000, jud1ment was entered, the jud1ment o!li1ee can only eBecute
the jud1ment !y applyin1 for the issuance of the writ of eBecution throu1h a motion
which he can file up to 9ecem!er #1, 2005 only. 0o 5 years ha, from entry of jud1ment.
0o he can file it either in 2001, 2002, 200#, 200. or 2005 !ecause the jud1ment was
entered on 4anuary 1, 2000. f it is already 4anuary 5, 200', he can no lon1er as< for
the issuance of the writ of eBecution !ecause the writ will no lon1er issue throu1h
motion.
6' 0o what can he do?
A' :e files an action to revive jud1ment. :e files an action.
6' Where should he file it?
A' t depends. t does not necessarily mean that it is the trial court !ecause this action is
a different action. Lou are see<in1 for a different jud1ment, the jud1ment that you see<
to revive, once revived, is a separate and distinct jud1ment from the ori1inal jud1ment.
0o if a decision for money in the amount of the )hp 500,000 was rendered !y the +$%
and entered 4anuary 1, 2000, and you were a!le to secure a writ of eBecution on
9ecem!er 2001 you can only implement that writ of eBecution up to 9ecem!er #1,
2005. f !y 4anuary 5, 200', you were a!le to collect only )hp .00,000 you cannot use
anymore the writ of eBecution issued in 2001 to have it implemented in 200'.
6' 0o what do you have to do?
A' (ecause there is still a deficiency jud1ment, you file an action to revive jud1ment.
6' Where will you file it?
A' 5ot with the +$%, !ecause your claim is only )hp 100,000.
NOTE' @et me warn you a1ain that there are 2 !oo<s in remedial law that say
otherwise. $hey say that the jud1ment is the same and therefore it must !e filed in the
same court. 90&?+AAM Lou !etter =ualify what <ind of jud1ment it is. f it is a
jud1ment for money, your claim is already within the jurisdiction of a different court. (ut
if it is a jud1ment which is not capa!le of pecuniary estimation, no choice, !ut you have
to file it with the +$%. (ut not in the same court. Rll not mention to you the !oo<. Gayo
n1 !ahalan1 ma1hanap dun. Rve tal<ed already to the author of that !oo< and he said
heRll revise it.
0o if !y 4anuary 200', the jud1ment o!li1ee files an action to revive jud1ment. &nd it
was revived, the revived jud1ment is separate and distinct from the ori1inal jud1ment.
$his jud1ment must a1ain !e entered and the entry of the revived jud1ment must !e the
!asis for eBecution of the jud1ment either !y motion or !y action.
0uppose you file your action to revive jud1ment in 4anuary 20, 200', and it was revived
!y the %ourt in >e!ruary 5, 200', and the entry of jud1ment was entered 15 days after.
$he 5 year period will start from >e!ruary 20, 200' and you will have until >e!ruary 1*,
2011 within which you can 1et a writ of eBecution !y motion. f !y >e!ruary 1*, 2011 you
have not 1otten ta<in1 writ of eBecution !y motion, you can a1ain avail file an action to
revive jud1ment. $he jud1ment that you see< to revive is the revived jud1ment. $his is a
second revival of jud1ment. $his is possi!le.
$here is no limit as to the num!er of revival of jud1ment unless the prescription of 10
years sets in.
6' &nd where do you count the 10 year period?
72
A' >rom entry, not of the ori1inal jud1ment !ut of the jud1ment that you see< to
implement. 0o you can only revive the ori1inal jud1ment which was entered 4anuary 1,
2000 up until 9ecem!er #1, 2010. $he jud1ment which you have revived on 4anuary
200' and entered in >e!ruary 20, 200', you still have until 2011 within which to revive it
!y motion. (ut you can revive it either !y motion or !y action only up to >e!ruary 201'
!ecause you count the prescription from the entry of the revived jud1ment.
$uloy/tuloy yan !asta hindi lan1 ma1/eBpire yun1 10/year period. (ut the 10/year period
must never !e counted from the ori1inal one !ecause as i said a revived jud1ment is
separate and distinct from the ori1inal jud1ment.
?oin1 !ac< to the old doctrine of @uEon, <asi !ina1o yun, you can only revive once. (ut
latest jurisprudence has 1one !ac< to the ori1inal rulin1 that you can revive as many
times as possi!le provided it does not prescri!e.
7ection 8- $he writ of eBecution is addressed to the sheriff. $hen the sheriff must
implement the writ accordin1 to the tenor of the writ. $hatRs why it is re=uired now that
when you file a motion for a writ of eBecution, you should state what you want and the
writ of eBecution must also state what is to !e eBecuted. Walan1 1eneralities dito. Lou
cannot say, for eBample, T move for the eBecution of the jud1ment entered 4anuary 10,
2005.T 5o, you have to state specifically that you are prayin1 for the issuance of the writ
of eBecution in the amount of )hp 100,000 as principal o!li1ation, 20,000 as interest
thereto, 10,000 as attorneyRs fees, 5,000 as cost of suit. n other words, it must !e
specific, !ecause the writ of eBecution will also follow your motion. &nd this is
addressed to the sheriff.
&side from the sums of money, if it is for sum of money halim!awa, stated in the writ of
eBecution, the sheriff is also entitled to his le1al fees. (a1o na n1ayon, dati )hp . per
100,000 or 1M.
6' 0o, letRs say itRs a jud1ment for money. $he sheriff now, armed with a writ of
eBecution, 1oes to jud1ment o!li1or (. $he jud1ment o!li1ee is &. & was a!le to 1et a
writ of eBecution addressed to the 0heriff N. 0o N now would 1o to (. $he sheriff
implements the writ of eBecution which the jud1ment amounts to )hp 1M. $hen ( 1oes
in his room and 1ets his )hp 1M cash and pays directly to the sheriff. s that a valid
satisfaction of jud1ment?
A' $hat is condition. (ecause payment to the sheriff may not !e a valid satisfaction of
jud1ment. t is only payment to jud1ment of o!li1ee. (ut in the course of the eBecution,
if the jud1ment o!li1ee is not there, once the sheriff receives the money in satisfaction
of the jud1ment, the rule provides that the sheriff should turn the money over to the
cler< of court or deposit it with a reputa!le !an< within a period of 2. hours.
0o when you 1et to !ecome lawyers, never eBecute a jud1ment in the afternoon.
(ecause the !an< closes at #pm and the cler< of court closes, supposedly at 5pm !ut at
2pm the cler< of court is not there anymore. 0o the sheriff mi1ht <eep it. $hat is not
satisfaction of jud1ment.
n the case of )&@, it was handed out to the sheriff and the sheriff did not remit it to the
jud1ment o!li1ee. )&@ contended that there was eBecution already !ut the jud1ment
o!li1ee denied. $he sheriff is nowhere to !e found. $he 0% said there is no satisfaction
of jud1ment. t must !e 1iven to the jud1ment o!li1ee. 0o if youRre the jud1ment o!li1or,
!e careful. f youRre the jud1ment o!li1ee, accompany the sheriff. $his is if it is in cash.
6' f o!li1or, (, pays a chec< in the name of the sheriff 4uan 9ela %ruE, is it valid?
73
A' 5o, it is invalid. t must !e paid to the order of the jud1ment o!li1ee.
6' 0uppose it is paya!le to cash?
A' 5o it is not valid, !ecause it is not handed to the jud1ment o!li1ee. f it is handed to
the sheriff, the sheriff will encash it, for sure.
$he sheriffs now are li<e the taB collectors in the (i!le, most of them. +ule #* is the
(i!le of the 0heriffs. $hey <now it. Most lawyers usually rely on the sheriffs. $he sheriffs
a!use their power. 0o we must !e educated !y studyin1 it.
JO.E TIME +% Att%- (rondi,
I-
&tty. (rondial reiterates and educates his students to !ecome ?229 and %:+0$&5
@awyers.
Gaya maramin1 na1sasa!i na walan1 lawyers sa lan1it.
ManF 7)a1datin1 dun8 0t. )eter, nandiyan !a si &tty. 9ela %ruE?
0t. )eterF Wala dito, !a<a nasa impiyerno.
ManF 7)unta n1 impiyerno8 0atan, nandiyan !a si &tty. 9ela %ruE?
0atanF Wala rin dito e, !a<a nasa pur1atoryo. tanon1 mo <ay 0t. ?a!riel.
ManF 7)unta n1 pur1atoryo8 0t. ?a!riel, nandiyan !a si &tty. 9ela %ruE?
0t. ?a!rielF WalaM
ManF 7(ali< <ay 0t. )eter8 0t. )eter wala siya sa impiyerno, wala siya sa pur1atoryo,
wala rin dito, nasan <aya yun?
0t. )eterF Wala? &no !an1 tra!aho nun?
ManF @awyer ho.
0t. )eterF A yun naman pala. Walan1 <aluluwa yun.
70ection % lau1hedM8 &sti1M ?alin1 n1 delivery ni (rondialM
II-
0t. )eterF :oy 0atanas, nasira yun1 !a<od natin dito. Marami <an1 en1ineer diyan,
ipaayos mo naman ito.
0atanasF &yo<o n1aM
0t. )eterF 0i1e ayaw mo ha. haha!la <ita.
0atanasF 0aan <a naman <u<uha n1 a!o1ado? A andito lahat sila.
7&1ain, 0ection % lau1hed8 &sti1M
0o when you try to eBecute a jud1ment, then accompany your client whether he is a
jud1ment creditor or de!tor. ;p to the end. Walan1 iwanan.
$here is another way of satisfaction of jud1ment, and we call this CARNI71MENT.
?arnishment is much !etter that @evy.
6' What is 1ranishment?
A' t is ta<in1 le1al custody of money, ordinarily from a !an< or financial institution.
;nder the +ules, para1raph c of 0ection *, in 1arnishment, you simply furnish a copy of
the writ of eBecution and the entry of jud1ment to1ether with a copy of the jud1ment to
the !ranch mana1er of the !an< or a financial institution. &nd when he receives that,
under the rule, he is !ound, within a period of 5 days, to inform the sheriff or the court
whether or not the jud1ment de!tor has money in the !an<. &nd thereafter, 10 days
after, he has to remit the money to the jud1ment o!li1ee.
Mas madali an1 1arnishment <aysa sa levy.
5ow the other one is what you call LEVH.
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6' :ow do you levy?
A' @evy is ta<in1 le1al custody of either real or personal properties.
6' What can !e su!ject of levy?
A' +eal or personal properties.
I) it is /erson, /ro/ert%, then the sheriff ta<es actual custody of it if it is capa!le of
manual delivery. f it is not capa!le of manual delivery, then the personal property must
!e duly ascertained that it is in the place. (y 1ivin1 a copy of the writ of eBecution to the
one in char1e of that property and !y that the property !ecomes in CU7TODIA LECI7-
I) it is re, /ro/ert%, it is a matter of annotation in the office of the re1ister of deeds of
the place where the property is located. $hat is how to levy.
$his eBample that Cve 1iven is jud1ment for money, !ut not all jud1ments are jud1ment
for money. 0o if this is a jud1ment for specific performance, the sheriff must underta<e
that the jud1ment o!li1or does somethin1 as ordered !y the court.
0uppose it is a jud1ment to withdraw money, it is not a jud1ment for money !ut a
jud1ment for specific performance. 0o the sheriff must accompany the jud1ment o!li1or
and as< him to withdraw money from the !an<. &nd that in one case, this is considered
as a special <ind of jud1ment. n other words, it is a jud1ment which cannot !e
performed !y any other person eBcept the jud1ment o!li1or !ecause if this can !e
performed !y other persons other than the jud1ment o!li1or, and he does not want to do
it, then the 0heriff can as< other persons to do it at the eBpense of the jud1ment o!li1or.
E#m/,e'
& jud1ment to !uild a house. $hat is a jud1ment for specific performance. (ut the
jud1ment o!li1or does not want to !uild the house. &s< someone to !uild the house at
the eBpense of the jud1ment o!li1or.
f it is a jud1ment for delivery of specific property, then if the jud1ment o!li1or does not
want to deliver, then as< someone to deliver it in !ehalf of the jud1ment o!li1or, and at
the eBpense of the jud1ment o!li1or.
7/eci, mention must +e mde regrding un,!)u, detiner. $his is a jud1ment to
vacate and delivery of the property to the jud1ment o!li1ee. +emem!er that under +ule
,0 the eBecution of that jud1ment, you have to 1ive at least # or 5 days, in the case of
residence and # or 5 days in the case of lot. 0o you cannot just immediately oust the
jud1ment o!li1or. Lou have to implement the written eBecution !y tellin1 the jud1ment
o!li1or to vacate the premises within # / 5 days.
6' f after 5 days, the sheriff 1oes !ac< to the jud1ment o!li1or and the jud1ment o!li1or
is still there, will the jud1ment o!li1or !e lia!le for contempt?
A' 5o. $he sheriff must as< police officers or must secure help from pu!lic authorities
75(8 to forci!ly eject the jud1ment o!li1or. (ut the sheriff cannot cite the jud1ment in
contempt !ecause the writ of eBecution is addressed to the sheriff.
5ow the property is already vacated. $hen after 10 / #0 days the sheriff came !ac< and
saw the jud1ment o!li1or occupyin1 the same property, the sheriff can now cite the
jud1ment o!li1or in contempt.
0uppose in this ejectment case a1ain, the property owned !y the jud1ment o!li1ee is a
land. 2n the land is !uilt a !aron1/!aron1 !uilt !y the jud1ment o!li1or. 0o you have to
75
demolish the premises.
6' When you eBecute the jud1ment to vacate, can you demolish the premises ri1ht
away?
A' 5o you cannot do that. Lou have to secure from the court a writ of demolition.
$hese are specific ways !y which to eBecute a jud1ment.
6' 0o the sheriff, for sum of money in the amount of ) 1M, was not a!le to collect it
from jud1ment o!li1or (. 0o what should the sheriff do?
A' :e levies on the properties of the jud1ment o!li1or.
6' What properties should the sheriff levy on?
A' Aither real or personal properties.
(ut under the rules now, the jud1ment o!li1or has the option as to which property
should first !e levied. &nd that privile1e or option does not !elon1 to the jud1ment
o!li1ee or the sheriff !ut !elon1 to the jud1ment o!li1or.
0o when the sheriff 1oes to the house and determines that the jud1ment o!li1or cannot
pay in cash or chec<, the sheriff has no other choice !ut to levy on his property. f the
sheriff chooses the jud1ment o!li1orRs car 7Mercedes (enE8 to !e levied, the jud1ment
o!li1or can oppose or contest. $he jud1ment o!li1or can point to other properties to
satisfy his jud1ment de!t. @i<e the 43% flat screen $3 which is already )2**,000, or the
15 cu!ic feet freeEer which is already ) 100,000, or the other car 7$oyota, model 1*'58.
In ot"er !ords$ t"e 3udgment o+,igor "s t"e o/tion-
$he pro!lem is when the jud1ment o!li1or is not present. %onsiderin1 that no one can
eBercise the option, so it is now incum!ent upon the sheriff to levy on any property that
he sees. (ut t"e s"eri)) must )irst ,e&% /erson, /ro/erties o&er re, /ro/erties.
6' f what the sheriff was a!le to levy only was a $oyota 1*'5 %orolla, which is only
)#0,000 7out of ) 1M8, the sheriff levies on real properties. :ow does he 1o a!out it?
A' $he sheriff 1oes to the re1ister of deeds and tries to eBamine whether there are
properties in the name of the jud1ment o!li1or. f there are, the sheriff furnishes the
re1ister of deeds of a copy of the writ of eBecution, to1ether with the jud1ment, and as<
the re1ister of deeds to annotate on the ori1inal transfer certificate of title !elon1in1 or in
the name of the jud1ment de!tor. &nd !y that levy, that is what you call levy on real
property. (y that annotation, that property is now in %;0$29& @A?0.
0uppose the property is not titled. 0o the sheriff 1oes to the office of the Municipal or
%ity &ssessor and 1et a copy of the taB declarations in the name of the jud1ment
o!li1or. &nd armed with the copy of the taB declarations, the sheriff 1oes !ac< to the
re1ister of deeds and have it recorded in the !oo< of unre1istered properties. 0o that is
how to levy an unre1istered property.
2therwise, if it is personal property, capa!le of manual delivery, the sheriff ta<es it. 0o
the sheriff levies a $oyota %orolla car, he ta<es actual custody of the car and drives it to
the court and <eeps it there. $he sheriff should not <eep it at home and use it for
personal matters.
f the sheriff personally uses the car and he was accosted !y a $M? 2fficer, and the
latter finds out that the car is a levied property, and the sheriff uses the jud1e as an
eBcuse 7dinamay an1 jud1e8. (oth the sheriff and the jud1e were administratively
char1ed. $he sheriff was dischar1ed and the jud1e was suspended. 9ecided case yan
76
!y the 0%. 0o <eep the property in the premises of the court, and considerin1 that you
have levied on this property, you have now to set the auction sale of the property.
7ection 1D re t"ose /ro/erties !"ic" re e#em/t )rom e#ecution. Lou just 1o over
them. Madalin1 tandaan !ecause 0ection 1# of +ule #* have 1# eBempt properties.
6' :ave you ever wondered why it uses # horses, # cara!aos, or # cows?
A' 1 <ay tatay, 1 <ay nanay at 1 para sa ana<. (ecause it is an ideal family and the
perfect family is the holy family 74oseph, Mary and 4esus8.
$he horses contemplated herein are for the use of the family. $hey are not race horses.
(ecause if you can <eep race horses, the race horseRs value would !e ) 500G / ) 1M.
0everal years a1o, (rondial 1ave an eBam and 1ave a =uestion a!out levy. & very rich
person with # race horses. )ina/levy ni (rondial yun. :e as<ed <un1 pweden1 i/eBempt
yun. / $he race horses can !e levied and what is contemplated !y the rules are horses
used for livelihood. Aven if the horses, in <alesa, were used to !e race horses. $hey are
still eBempt.
Too,s nd im/,ements in para1raph ! of 0ection 1# have a decided case. :ere is a
security a1ency, was sued and jud1ment was rendered for money. $he a1ency could
not pay so the sheriff levied properties. $he properties levied were 1uns and
ammunitions. $he a1ency filed a motion to =uash the writ of eBecution on the 1round
that these are tools in the implement of the !usiness. $he 0% said that these are not
eBempt from eBecution !ecause they are not tools and implements contemplated !y the
rules. (ecause the 1uns and ammunitions were used for !usiness. What the rules
contemplate are tools and implements used for livelihood.
$a<e note that there is no limit in nnuities !ut re1ardin1 li!raries of lawyers, doctors,
en1ineers and teachers, the limit is ) #00,000. $hat is very small, one 0%+& costs )
-'0.
@et me proceed to eBecution proper. Auction s,e.
7ection 1;- Notices-
6' What are the re=uirements !efore auction can !e underta<en?
A' +emem!er # re=uirements and =ualify them as to what they are re=uired.
1. 5otice
2. )ostin1
#. )u!lication
Notice$ irres/ecti&e o) !"t is to +e uctioned$ is mndtor%-
6' 5otice to whom?
A' 5otice to the jud1ment o!li1or. 0o that if there is no notice to the jud1ment o!li1or,
the auction !ecomes irre1ular and may even !e invalidated.
6' When is postin1 necessary dependin1 on what is to !e auctioned?
A' (ecause the date of postin1 depends on the o!ject of auction.
I) it is /eris"+,e goods, postin1 may !e re=uired !ut only for a day or two.
I) it is /erson, /ro/erties, capa!le of manual delivery, it may !e 5 days, otherwise, it
may !e more dependin1 now on the court.
6' Where should the postin1 !e done?
77
A' $here are places stated in the rules and they are not mandatory. $hey are only
su11estions. $he rationale !ehind the law is where as many people as possi!le that can
read it. Municipal !uildin1, pu!lic mar<et, post offices. 9i !a may pu!lic mar<et din sa
0M, pwede and postin1 dito.
&lthou1h the pro!lem is when the post is !ein1 defaced or removed. $he person who
defaced the post is lia!le for the amount of not more than ) 5,000. (ut it is very hard to
search or even identify the person who defaced the post.
5ow, if the auction is of a real property, pu!lication is not needed. (ut when the property
is worth more than )50,000 then pu!lication is needed once a wee< in 2 consecutive
wee<s in a newspaper of 1eneral circulation. n the case have assi1ned to you, in
)inlac v. %&, the 0% descri!ed what is a newspaper of 1eneral circulation. (ecause if
you donRt comply with that, then there is no valid pu!lication, the auction is irre1ular and
may !e invalidated.
t is further said that the auction sale must !e done !etween the hours of *am / 2pm.
&nd it can !e adjourned from time to time dependin1 on the a1reements of the parties
or if the parties are not around, dependin1 on the sheriff after 1ivin1 notice to the
parties.
:ave you attended an auction sale? Lou !etter attend one !ecause there are auction
sales that do not comply with the rules. 5ot that the sheriff who does not comply with it
!ut !ecause of the a!sentee lawyers, a!sentee o!li1ors, or even the a!sentee o!li1ees.
&s lawyers, you must !e present so you can oppose if there are irre1ularites !ecause
there are prices which are unconsciona!le. &side from the fact that the jud1ment o!li1or
has the option as to which should !e first sold. $3 set, >reeEer or other properties that
can easily satisfy his de!t. f the jud1ment o!li1or is a!sent, there can !e connivance
!etween the sheriff and the jud1ment o!li1ee and connive with what property to !e
auctioned and on what amount the property can !e auctioned at. &s when there are no
other !idders, the sheriff may allow the o!li1ee to !id at a very low amount thus there
would still !e a insufficiency jud1ment.
CENERAL RULE' f the jud1ment o!li1ee is the purchaser at the auction sale, the
jud1ment o!li1ee is not !ound to pay.
EKCE4TION' 0ection 1', where there is a #rd party claim. $he jud1ment o!li1ee, even
if he is the hi1hest !idder, must pay !ecause there is a =uestion as to ownership of
property auctioned.
6' & #rd party claim is different from a #rd party complaint. WeRve studied #rd party
complaint already.
A' & #rd party claim happens on auction sale on eBecution, foreclosure, or attachment.
We have the rules which are inter/related. n +ule #*, inter/relate it with +ule 5, on
attachment and +ule '- on foreclosure of real estate mort1a1e. @ahat n1 ito ay may
rule on #rd party claim. &nd they have practically the same provisions.
6' 0o that if there is a #rd party claim, how does the #rd party claim must 1o a!out it?
A' :e must eBecute an affidavit statin1 that he is the owner of the property. :e 1ives
that to the sheriff. $he sheriff copy furnishes the jud1ment o!li1ee. f the jud1ment
o!li1ee does not put up a !ond, then the sheriff will not !e lia!le for the deliverin1 the
property to the #rd party claimant.
n replevin 7recovery of personal property8, under +ule '0, there is also a #rd party
claim. +emem!er, that !efore you can !e 1ranted the writ of replevin, you have to file a
78
!ond.
6' :ow much is the !ond? $
A' $wice the value of the property. We will study that once we 1et to +ule '0.
What (rondial is tryin1 to say is that in replevin there is a #rd party claim. &side from
puttin1 a !ond twice the value of the property, you have to, still, put up another !ond
e=uivalent to the value of the property.
E#m/,e'
Mercedes (enE car is worth )1M. $hen in replevin you have to put up a !ond in the
amount of )#M 7twice the value of the !ond and the another !ond e=uivalent to the
value of the property8 !ecause of the #rd party claim.
(ut in +ule #*, the !ond must !e e=uivalent to the value of the property.
No dmges m% +e )i,ed ginst t"e s"eri)) )ter /eriod o) 15? d%s- 120 days
means prescription. 0o if you want to file for dama1es, you have to file it within 120
days. $he case is Loun1 v. 3aldeE.
0o this is #rd party claim, 0ection 1'.
$hen notices filed in 0ecs. 1,, 1- and 1*.
I) !"t is uctioned is re, /ro/ert%$ the jud1ment o!li1or has the ri1ht of
redemption.
I) !"t is uctioned is /erson, /ro/ert%$ there is no ri1ht of redemption.
& car is a personal property, so if it is sold in an auction, the purchaser of the property
may as< for a deed of sale. &nd the deed of sale must !e eBecuted !y the sheriff and
not the owner anymore, !ecause the property is in custodia le1is.
$he ri1ht and interest of the purchaser retroacts to the time of the jud1ment or
preliminary attachment. %orrelate it with the rule on preliminary attachment.
f what is sold is real property, it is mandatory that a deed of sale must !e eBecuted and
a certificate of sale must !e issued and re1istered in the office of the re1ister of deeds.
$hat is very important !ecause the ri1ht of redemption !e1ins from the time that the
certificate of sale is re1istered with the office of the re1ister of deeds. $he period,
therefore, starts to run from the re1istration of a certificate of sale and not from the sale,
auction or the levy. $hat is the ri1ht of redemption.
n foreclosure of real estate mort1a1e under +ule '-, there is no ri1ht of redemption.
$here is only e=uity of redemption. &nd e=uity of redemption is different from ri1ht of
redemption. +i1ht of redemption is the authority or privile1e or ri1ht of the jud1ment
de!tor or o!li1or or redemptioner to redeem the property within a period of 1 year from
the re1istration of certificate of sale.
6' 0ection 2,, who may redeem?
A' 2 lan1 an1 pweden1 ma1/redeem.
1. jud1ment o!li1or or his succesors/in/interest.
2. redemptioner.
4,ese memoriIe t"e mening or rt"er t"e de)inition or descri/tion o) !"t
redem/tioner is-
& redemptioner is one who has a lien over the property su!se=uent to the lien under
which the property is sold. (rondial said he is just paraphrasin1 the provision in
79
para1raph ! under 0ection 2, of +ule #*.
&n1 importanten1 word ay an1 Lsu+se2uentL-
80

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REMEDIAL LAW REVIEW 2007

INTRODUCTION TO REMEDIAL LAW REVIEW

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